UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
| x | Annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 |
For the fiscal year ended December 31, 2014
or
| ¨ | Transition report pursuant to Section 13 or 15(d) of the Exchange Act For the transition period from __________ to __________ |
Commission file number: 1-9043
| Banyan Rail Services Inc. |
| (Exact name of registrant as specified in its charter) |
| Delaware | 36-3361229 | |
| (State of incorporation) | (I.R.S. Employer Identification No.) |
| 2255 Glades Road, Suite 111-E, Boca Raton, Florida 33431 |
| (Address of principal executive offices) |
| 561-997-7775 |
| (Registrant’s telephone number) |
Securities registered pursuant to Section 12(b) of the Exchange Act: None
Securities registered pursuant to Section 12(g) of the Exchange Act: Common stock, $0.01 par value per share
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ¨ No x
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or 15(d) of the Act. Yes ¨ No x
Indicate by check mark whether the registrant (1) filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No ¨
Indicate by check mark whether the registrant has submitted electronically and posted on its corporate Website, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T (section 232.405 of this chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No ¨
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K (section 229.405 of this chapter) is not contained herein, and will not be contained, to the best of registrant’s knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.
| Large Accelerated Filer ¨ | Accelerated Filer ¨ |
| Non-accelerated filer ¨ | Smaller Reporting Company x |
Indicate by checkmark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes x No ¨
State the aggregate market value of the voting and non-voting common equity held by non-affiliates computed by reference to the price at which the common equity was last sold, or the average bid and asked price of such common equity, as of the last business day of the registrant’s most recently completed second fiscal quarter. $4,277,187 as of June 30, 2014.
Indicate the number of shares outstanding of each of the registrant’s classes of common equity, as of the latest practicable date: 6,437,309 shares of common stock, $0.01 par value per share, as of March 15, 2015.
Table of Contents
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PART I
As used in this report, all references to “Banyan,” the “Company,” “we,” “our” and “us” refer to Banyan Rail Services Inc. (formerly B.H.I.T. Inc.).
In September 2013 the Company effectuated a one-for-five reverse split pursuant to which each shareholder received one common share for every five shares owned prior to the reverse split. All shares and per share amounts in this report have been adjusted retroactively to reflect this reverse stock split.
This Annual Report on Form 10-K contains information about us, some of which includes “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements are statements other than historical information or statements about our current condition. You can identify forward-looking statements by the use of terms such as “believes,” “contemplates,” “expects,” “may,” “will,” “could,” “should,” “would,” or “anticipates,” other similar phrases, or the negatives of these terms. We have based the forward-looking statements relating to our operations on our current expectations, estimates and projections about us and the markets we serve. We caution you that these statements are not guarantees of future performance and involve risks and uncertainties. These statements should be considered in conjunction with the discussion in Part I, the information set forth under Item 1A, “Risk Factors” and with the discussion of the business included in Part II, Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” We have based many of these forward-looking statements on assumptions about future events that may prove to be inaccurate. Accordingly, our actual outcomes and results may differ materially from what we have expressed or forecast in the forward-looking statements. Any differences could result from a variety of factors, including the following:
| · | successfully raising capital to fund our operations; |
| · | successfully finding an operating entity to acquire; |
| · | complying with SEC regulations and filing requirements applicable to us as a public company; and |
| · | any of our other plans, objectives, expectations and intentions contained in this report that are not historical facts. |
You should not place undue reliance on our forward-looking statements, which reflect our analysis only as of the date of this report. The risks and uncertainties listed above and elsewhere in this report and other documents that we file with the SEC, including this annual report on Form 10-K, quarterly reports on Form 10-Q, and any current reports on Form 8-K, must be carefully considered by any investor or potential investor in the Company.
In September 2009, we completed the acquisition of all of the issued and outstanding stock of The Wood Energy Group, Inc. (“Wood Energy”), a Missouri corporation engaged in the business of railroad tie reclamation and disposal. Prior to acquiring Wood Energy, Banyan was a shell company without significant operations or sources of revenues other than its investments.
Wood Energy provided railroad tie pickup, reclamation and disposal services to the Class 1 railroads (defined by the American Association of Railroads as a railway company with annual operating revenue over $452.7 million as of 2012) and industrial customers. We operated primarily in the southern region of the United States of America. Our services included removing scrap railroad ties (ties), disposing of the ties by selling them to the landscape and relay tie markets or having the ties ground to create chipped wood for subsequent sale as fuel to the co-generation markets.
On January 11, 2013, Wood Energy filed a voluntary petition for reorganization relief under the provisions of Chapter 11 of Title 11 of the United States Bankruptcy Code in the United States Bankruptcy Court Southern District of Florida, which was voluntarily converted into a Chapter 7 Bankruptcy on February 5, 2013.
The assets of Wood Energy were liquidated by the Trustee of the Bankruptcy Court. The proceeds for the sale were used to satisfy a portion of the secured claims, with the remainder if any, allocated to the unsecured claims.
As a result of Banyan’s guarantee of Wood Energy’s outstanding secured debt, at the time of its bankruptcy filing, to Fifth Third Bank (“FTB” or “Fifth Third”), FTB filed an action against Banyan in the Circuit Court of the Fifteenth Judicial Circuit in Palm Beach County, Florida. The action was subsequently settled on September 26, 2013 when Banyan paid $200,000 to FTB which fully satisfied Banyan’s obligation and provided a full release for Banyan by FTB.
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Our History Prior to Acquiring Wood Energy
The Company was originally organized under the laws of the Commonwealth of Massachusetts in 1985, for the purpose of investing in mortgage loans. The Company was reorganized as a Delaware corporation in 1987. From 1989 to 1992 the Company experienced severe losses as a result of a decline in real estate values and the resulting defaults on the mortgages it held. In 1998, the Company changed its name to B.H.I.T. Inc., and again changed its name to Banyan Rail Services Inc. in 2010.
On January 24, 2007, a group of private investors purchased 41.7% of our outstanding shares held by our largest shareholder at the time. Because members of our new management team have experience with the railroad industry, we began investigating acquisitions of companies in the rail industry. In the spring of 2009, we entered negotiations with the owners of Wood Energy to acquire the company. As a result of the acquisition of Wood Energy, we were no longer a shell company. On January 4, 2010, we changed our name to Banyan Rail Services Inc. to reflect our new business. As a result of the bankruptcy and liquidation of Wood Energy, Banyan is now a shell Company seeking to acquire an operating entity.
The following is a description of what we consider the key challenges and risks relating to our business and investing in our common stock. This discussion should be considered in conjunction with the discussion under the caption “Forward-Looking Information” preceding Part I, the information set forth under Item 1, “Business” and with the discussion of the business included in Part II, Item 7, “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” These risks comprise the material risks of which we are aware. If any of the events or developments described below or elsewhere in this Annual Report on Form 10-K, or in any documents that we subsequently file publicly were to occur, it could have a material adverse effect on our business, financial condition or results of operations.
Risks Relating to Our Company
Banyan is a shell company without significant assets or operations.
After the liquidation of the assets of Wood Energy, Banyan became a shell company without significant operations or sources of revenue other than investments. Without revenue we are currently dependent upon loans and equity infusions from affiliates to meet our cash needs. Our ability to continue on an on-going basis dependent upon, among other things, raising capital and identifying an operating business to acquire, among other factors, many of which are beyond our control.
We will need to raise additional capital, which may not be available to us and may limit our operations or growth.
We will need additional capital to fund the implementation of our business plan. We cannot assure you that any necessary subsequent financing will be successful. Our future liquidity and capital requirements are difficult to predict as they depend upon many factors, including our ability to identify and complete acquisitions and the success of any business we do acquire. We will need to raise additional funds in order to meet working capital requirements or additional capital expenditures or to take advantage of other opportunities. We cannot be certain that we will be able to obtain additional financing on favorable terms or at all. If we are unable to raise needed capital, our growth and operations may be impeded. In addition, if we raise capital by selling additional shares of stock, your percentage ownership in Banyan will be diluted.
We may not be able to successfully acquire or integrate a new business.
We face a variety of risks associated with acquiring and integrating new business operations. The growth and success of our business will depend on our ability to identify, acquire and operate new assets or businesses. We may compete with companies that have significantly greater resources than we do for potential acquisition candidates. We cannot provide assurance that we will be able to:
| · | identify suitable acquisition candidates or opportunities, |
| · | acquire assets or business operations on commercially acceptable terms, |
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| · | obtain financing necessary to complete an acquisition on reasonable terms or at all, |
| · | manage effectively the operations of acquired businesses, or |
| · | achieve our operating and growth strategies with respect to the acquired assets or businesses. |
Businesses that we acquire in the future could involve unforeseen difficulties, which could have a material adverse effect on our business, financial condition, and operating results.
Certain employees and directors own a significant interest in Banyan.
Certain directors and officers, control 93.0% of our outstanding common shares (92.9% if they exercised their options). Accordingly, they possess a significant vote on all matters submitted to a vote of our shareholders including the election of the members of our board. This concentration of ownership may have the effect of preventing or discouraging transactions involving an actual or a potential change of control of Banyan, regardless of whether a premium is offered over then-current market prices.
The current state of debt markets could have a material adverse impact on our earnings and financial condition.
The cost of commercial debt may increase or may contract as a result of certain factors including the tightening of underwriting standards by lenders and credit rating agencies. Credit spreads for major sources of capital may grow significantly as investors may demand a higher risk premium. Should our borrowing cost increase, either by increases in the index rates or by increases in lender spreads, we will need to factor such increases into the economics of our business plan. This may result in our generating lower overall economic returns and potentially reducing cash flow available for business operations and business development.
We have issued preferred stock, which may decrease both our net income available to common shareholders and cash flow.
We have 10,375 shares of preferred stock outstanding in the amount of $1.04 million, which were used for working capital needs when issued. Although investments in leveraged companies offer the opportunity for capital appreciation, leveraged investments also involve a high degree of risk. The amount of our preferred stock outstanding could have important consequences for us and our investors. For example, it could:
| · | require us to dedicate a substantial portion of our cash flow obtained from financing to payments on our mandatory preferred stock dividends, thereby reducing funds available for acquisitions, and other appropriate business development opportunities that may arise in the future, and |
| · | limit our flexibility in conducting our business plan of identifying and acquiring an operating company, which may place us at a disadvantage compared to competitors with less preferred stock. |
Our ability to make scheduled payments dividends on our preferred stock will depend primarily on our ability to successfully find an operating entity to acquire, as well as the future performance of that entity. All of which to a certain extent is subject to economic, financial, competitive and other factors beyond our control. We have been unable to make payments on our outstanding preferred stock and many of our preferred shareholders have agreed to accept common stock in lieu of cash dividends. There can be no assurance that our business plan will generate sufficient cash flow to pay mandatory preferred stock dividends or meet our other cash needs.
Risks Relating to Our Shares
Directors’ options and outstanding convertible preferred stock may depress the price of our common stock.
As a result of the private placements including issuances of preferred stock in 2012 and prior, there are shares of outstanding preferred stock which can be converted into as many as 103,750 shares of our common stock for $12.50 per share. In addition, as of December 31, 2014 we have issued options to purchase 20,000 shares to our directors as compensation for serving on the board at prices ranging from $10.30 to $13.50 a share. If the directors’ options are exercised or the shares of preferred stock are converted, your ownership of the Company will be diluted. In addition, the issuance of a significant number of shares upon conversion of shares of preferred stock or the exercise of options could depress the price of our stock if there isn’t enough demand for the shares in the market. Even if the shares of preferred stock are not converted, the large number of shares issuable upon conversion of the preferred stock could cause an overhang on the market.
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If you invest in Banyan, you may experience substantial dilution and the market price of our shares may decrease.
In the event we identify and obtain an operating entity, there may be a dilutive effect on the holders of our securities. In addition, as part of our recruitment process and in connection with our efforts to attract and retain employees and directors, we may offer stock options, restricted stock shares or other types of equity-based incentives to its future employees and directors. The Company’s issuance of equity-based incentives to new hires, senior management and directors, may cause you significant dilution as a result of such issuances. Also, we agreed that if we conduct a registered offering of securities, we will register the shares of common stock issued to the sellers of Wood Energy and underlying the preferred stock issued in connection with our acquisition of Wood Energy. Further, although shares of common stock issued to the sellers and to be issued upon conversion of our preferred stock will be “restricted” securities under the Securities Act of 1933 prior to any registration statement being filed and being declared effective by the SEC, they may nonetheless be sold prior to that time in reliance on registration exemptions contained in Rule 144 of the Securities Act, subject to certain resale restrictions imposed by Rule 144. Such issuances and sales may also depress the market price of our shares.
Our common stock may be considered a “penny stock.”
The SEC has adopted regulations which generally define “penny stock” to be an equity security that has a market price of less than $5.00 per share, subject to specific exemptions. The market price for our common stock is below $5.00 per share, and our stock trades are considered a “penny stock” according to SEC rules. This designation requires any broker or dealer selling these securities to disclose certain information concerning the transaction, obtain a written agreement from the purchaser and determine that the purchaser is reasonably suitable to purchase the securities. These rules may restrict the ability of brokers or dealers to sell our common stock and may affect the ability of investors to sell their shares.
You may not be able to sell your shares because there is a limited market for our stock.
Although our common stock is traded on the OTCQB, currently there is limited trading volume in our stock and there may be very limited demand for it as well. As a result, it may be difficult for you to sell our common stock despite the fact it is traded on the OTCQB.
Our preferred stock could adversely affect the holders of our common stock.
As of December 31, 2014, we have 10,375 shares of preferred stock outstanding of the 49,950 shares of stock that were previously issued. Pursuant to our certificate of incorporation, our board of directors has the authority to fix the rights, preferences, privileges and restrictions of unissued preferred stock and to issue those shares without any further action or vote by the common stockholders. The holders of the preferred stock are entitled to receive payment before any of the common stockholders upon liquidation of the Company and we cannot pay a dividend on our common stock unless we first pay dividends required by our preferred stock. In addition, the rights of the holders of our common stock will be subject to, and may be adversely affected by, the rights of the holders of any series of preferred stock that may be issued in the future. These adverse effects could include subordination to preferred shareholders in the payment of dividends and upon our liquidation and dissolution, and the use of preferred stock as an anti-takeover measure, which could impede a change in control that is otherwise in the interests of holders of our common stock. In December of 2012, the Company extended an offer to preferred shareholders to receive payment of dividends in the form of common stock in lieu of cash. On September 30, 2014, we converted 39,575 shares of preferred stock as part of an offer to our shareholders. As of December 31, 2014, 56.3% or approximately $103,750 of the annual dividend due to preferred shareholders is paid in common stock; the balance will remain accrued until such time as the Company has sufficient cash from operations to issue cash payment. We do not anticipate paying cash dividends on our common stock in the foreseeable future. When the Company issues payment of these dividends in common stock, your percentage ownership in Banyan will be diluted
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We do not intend to pay any cash dividends on our common stock.
We do not anticipate paying any cash dividends on our common stock in the foreseeable future. The payment of cash dividends depends on our future earnings, financial condition and other business and economic factors that our board of directors may consider relevant. Because we do not intend to pay cash dividends, the only return on your investment may be limited to the market price of the shares.
We do not own any real property.
Not applicable.
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Item 5. Market for Registrant’s Common Equity, Related Stockholder Matters and Issuer Purchases of Equity Securities.
Shares of our common stock are traded over-the-counter and sales are reported on the OTCQB under the symbol “BARA”. The last reported sale price as of March 15, 2015 was $2.70 per share. The following table lists the high and low closing sale prices of our stock during 2014 and 2013 as reported on OTCQB. These sale prices reflect inter-dealer prices, without retail mark-up, mark-down or commission, and may not represent actual transactions.
| Fiscal Year Ending December 31, | ||||||||||||||||
| 2014 | 2013 | |||||||||||||||
| High | Low | High | Low | |||||||||||||
| Fourth Quarter | $ | 6.25 | $ | 2.35 | $ | 6.00 | $ | 2.50 | ||||||||
| Third Quarter | $ | 10.02 | $ | 5.00 | $ | 3.75 | $ | 1.50 | ||||||||
| Second Quarter | $ | 10.90 | $ | 5.05 | $ | 11.00 | $ | 2.55 | ||||||||
| First Quarter | $ | 10.00 | $ | 5.50 | $ | 11.00 | $ | 8.00 | ||||||||
There were approximately 1,548 stockholders of record of Banyan’s common stock as of March 15, 2015. There are additional stockholders who own stock in their accounts at brokerage firms and other financial institutions.
All share and per share amounts in this Annual Report on Form 10-K have been adjusted retroactively to reflect a reverse stock split. See Reverse Stock Split.
Common Stock
As of December 31, 2014, our certificate of incorporation provided that we were authorized to issue 7.5 million shares of common stock, par value $0.01 per share. On February 4, 2015 we amended our certificate of incorporation to increase the authorized common shares to 50.0 million. The holders of our common stock are entitled to one vote per share on all matters to be voted upon by our stockholders, including the election of directors. Our shares of common stock are not convertible into any other security and do not have any preemptive rights, conversion rights, redemption rights or sinking fund provisions. Stockholders are entitled to receive dividends out of funds legally available if our board of directors, in its discretion, determines to issue dividends and only then at the times and in the amounts that our board of directors may determine. In the event of our liquidation, dissolution, or winding up, our stockholders receive ratably any net assets that remain after the payment of all of our debts, preferred stock and other liabilities.
Our certificate of incorporation also limits the number of shares that may be held by any one person or entity. No person or entity may directly or indirectly acquire shares if it would cause the person or entity to be:
| (1) | treated as a 5% shareholder within the meaning of Section 382 of the Internal Revenue Code, which relates to net operating losses (NOLs) and limitations on a company’s ability to utilize them, | |
| (2) | treated as a holder of shares in an amount that could otherwise result in a limitation on our use of, or a loss of, NOLs, or | |
| (3) | the beneficial owner (as defined under Rule 13d-3 of the Securities Exchange Act of 1934) of more than 4.5% of our outstanding shares. |
Our board has the authority and has in the past exercised their discretion to exempt shareholders from the foregoing limitations if such shareholders can provide evidence to assure the board that no NOLs will be lost or limited by such exemption or the board determines such exemption is in the best interests of Banyan.
Dividends
We intend to reinvest our earnings, if any, in the business, and have never declared or paid, and do not intend to declare or pay, any cash dividends on our common stock.
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Stock Options
In 2014, no compensatory stock options were issued.
Item 6. Selected Financial Data.
Not applicable.
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of Operations.
The following discussion and analysis of our financial condition and results of operations should be read together with our consolidated financial statements and related notes included under Item 8 of this Annual Report on Form 10-K.
Overview
In September 2009, we completed the acquisition of all of the issued and outstanding stock of The Wood Energy Group, Inc., a Missouri corporation engaged in the business of railroad tie reclamation and disposal. Prior to acquiring Wood Energy, Banyan was a shell company without significant operations or sources of revenues other than its investments.
Wood Energy provided railroad tie pickup, reclamation and disposal services to the Class 1 railroads (defined by the American Association of Railroads as a railway company with annual operating revenue over $452.7 million as of 2012) and industrial customers. We operated primarily in the southern region of the United States of America. Our services included removing scrap railroad ties (ties), disposing of the ties by selling them to the landscape and relay tie markets or having the ties ground to create chipped wood for subsequent sale as fuel to the co-generation markets.
On January 11, 2013, Wood Energy filed a voluntary petition for reorganization relief under the provisions of Chapter 11 of Title 11 of the United States Bankruptcy Code in the United States Bankruptcy Court Southern District of Florida, which was voluntarily converted into a Chapter 7 Bankruptcy on February 5, 2013.
The assets of Wood Energy were liquidated by the Trustee of the Bankruptcy Court. The proceeds for the sale were used to satisfy a portion of the secured claims, with the remainder if any, allocated to the unsecured claims.
As a result of Banyan’s guarantee of Wood Energy’s outstanding secured debt, at the time of its bankruptcy filing, to Fifth Third Bank (“FTB” or “Fifth Third”), FTB filed an action against Banyan in the Circuit Court of the Fifteenth Judicial Circuit in Palm Beach County, Florida. The action was subsequently settled on September 26, 2013 when Banyan paid $200,000 to FTB which fully satisfied Banyan’s obligation and provided a full release for Banyan by FTB.
The Company’s future liquidity and capital requirements are dependent upon many factors, including our ability to identify and complete acquisitions and the success of any business we do acquire. We may need to raise additional funds in order to meet working capital requirements or additional capital expenditures or to take advantage of other opportunities. We cannot be certain that we will be able to obtain additional financing on favorable terms or at all. If we are unable to raise needed capital, our growth may be impeded. In addition, if we raise capital by selling additional shares of stock, your percentage ownership in Banyan will be diluted.
The Company is actively seeking acquisitions of leading companies within the industrial, energy, transportation, technology and health care industries throughout North America, and intends to keep its statutory filings current during the process.
Recent Events
Common Stock Issuances
On September 30, 2014 the Company completed an offering to its preferred stockholders to convert its outstanding Preferred Stock into common stock, in addition to its accrued and outstanding preferred stock dividends into common shares. As a result of this offering the holders of substantially all of the preferred stock agreed to convert and the Company agreed to issue 442,145 shares of common stock in conjunction with this conversion. The shares were issued on November 18, 2014.
On December 29, 2014, the Company agreed to issue 1,807,408 shares of common stock (“Shares”) to Banyan Rail Holdings, LLC for $0.18 a share in exchange for cancellation of two (2) notes receivable plus accrued interest in the amount $325,333. The Company obtained an opinion of an independent investment banking firm that the price of $0.18 a share is fair to the Company. Gary O. Marino, the Company’s chairman, is the president of Banyan Rail Holdings, LLC and a significant owner of the Company. The shares were issued in January 2015. The Company recorded a discount of $3,922,073 to reflect the difference between the offering price and the quoted market price on the date the offering was subscribed. The discount is recorded as interest expense for the period.
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Also on December 29, 2014, the Company agreed to issue 2,777,778 Shares to Marino Family Holdings, LLC for $0.18 a share or $500,000 in total. The Company obtained an opinion of an independent investment banking firm that the price of $0.18 a share is fair to the Company. Gary O. Marino, the Company’s chairman, is the manager of Marino Family Holdings, LLC. and a significant owner of the Company. The proceeds from the sale of the Shares were used for working capital purposes. The shares were issued in January 2015. The Company recorded a discount of $6,027,778 to reflect the difference between the offering price and the quoted market price on the date the offering was subscribed. The discount is recorded as compensation expense for the period.
Also on December 29, 2014, the Company agreed to issue 138,889 Shares to Jon Ryan for $0.18 a share, or $25,000 in total. The Company obtained an opinion of an independent investment banking firm that the price of $0.18 a share is fair to the Company. Mr. Ryan is the Company’s Chief Executive Officer, President and Chief Financial Officer. The shares were issued in January 2015. The Company recorded a discount of $301,389 to reflect the difference between the offering price and the quoted market price on the date the offering was subscribed. The discount is recorded as compensation expense for the period.
During 2014, the Company agreed to issue 138,889 shares of common stock to Coalbrookdale Partners for $0.18 a share as part of a private placement of common stock in exchange for the cancellation of advances made to the Company in the amount of $25,000. The Company obtained an opinion of an independent investment banking firm that the price of $0.18 a share is fair to the Company. The proceeds of the money received were used to fund working capital requirements. Donald Denbo, a Director of the Company, is a partner in Coalbrookdale Partners. The shares were issued in January 2015. The Company recorded a discount of $301,389 to reflect the difference between the offering price and the quoted market price on the date the offering was subscribed. The discount is recorded as compensation expense for the period.
Reverse Stock Split
In September 2013, the Company effectuated a 1-for-5 reverse stock split pursuant to which each stockholder received one share of common stock for every five shares owned prior to the reverse split. All share and per share amounts in this Annual Report on Form 10-Khave been adjusted retroactively to reflect this reverse stock split.
Increase in Authorized Shares
In February 2015, the Company effectuated an amendment to our certificate of incorporation to increase the authorized shares of common stock from 7.5 million to 50.0 million by amending Article Third of our certificate of incorporation.
Officers and Directors Changes
On December 9, 2014, Donald D. Redfearn stepped down as the Company’s Chief Executive officer but will remain on the board of directors. Concurrently, the Board elected Jon Ryan to serve as the Chief Executive Officer of the Company.
Financing Agreements
Preferred stock dividends for Series A, B and C are accrued for the semi-annual period ended December 31, 2014 in the amount of $150,814. During 2012, due to the lack of cash flow, the Company offered to settle the accrued dividends in common stock in lieu of cash. Substantially all preferred shareholders accepted the common stock in lieu of cash and the common shares for these dividends. As part of this offer, in January 2015, the Company issued 10,921 shares of common stock in lieu of $51,875 of the dividends accrued at year end.
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Critical Accounting Policies and Estimates
The following discussion and analysis of our results of operations and financial condition is based upon our consolidated financial statements, which have been prepared in accordance with accounting principles generally accepted in the United States of America. The preparation of these financial statements requires us to make estimates and judgments that affect the reported amounts of assets, liabilities, revenues and expenses, and disclosure of contingent assets and liabilities, if any, at the date of the financial statements. We base our estimates on historical experience and various other assumptions that we believe to be reasonable under the circumstances. If these estimates differ materially from actual results, the impact on our consolidated financial statements may be material.
We review our financial reporting and disclosure practices and accounting policies quarterly to ensure that they provide accurate and transparent information relative to the current economic and business environment. During the year ended December 31, 2014, there were no significant changes to the critical accounting policies.
Use of Estimates
The preparation of financial statements, in conformity with accounting principles generally accepted in the United States, requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Significant estimates include the useful lives of property and equipment, and the useful lives of intangible assets.
Cash
The Company considers all cash, bank deposits and highly liquid investments with an original maturity of three months or less to be cash.
Fair Value of Financial Instruments
Recorded financial instruments at December 31, 2014 consist of cash and short-term obligations. The related fair values of these financial instruments approximated their carrying values due to either the short-term nature of these instruments or based on the interest rates currently available to the Company.
Earnings per Share
Basic earnings (loss) per share are computed based on weighted average shares outstanding during the period. Diluted earnings (loss) per share are computed using the weighted average number of common and dilutive common stock equivalent shares outstanding during the period. Dilutive common stock equivalent shares consist of the dilutive effect of stock options, and preferred stock common stock equivalents.
Discontinued Operations
The application of current accounting principles that govern the classification of our subsidiary as held-for-sale on our consolidated balance sheets, or the presentation of results of operations and gains on the sale or disposal of this subsidiary as discontinued, requires management to make certain significant judgments. In evaluating whether a subsidiary meets the criteria set forth, we make a determination as to the point in time that it is probable that disposal will be consummated. Therefore, based on our evaluation of our subsidiary in Chapter 7 Bankruptcy where we no longer have continuing involvement or cash flows, we have classified the subsidiary as discontinued operations. Certain prior year amounts have been reclassified to conform to the current year presentation.
Income Taxes
The Company accounts for income taxes in accordance with ASC 740, Accounting for Income Taxes, as clarified by ASC 740-10, Accounting for Uncertainty in Income Taxes. Under this method, deferred income taxes are determined based on the estimated future tax effects of differences between the financial statement and tax basis of assets and liabilities given the provisions of enacted tax laws.
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Deferred income tax provisions and benefits are based on changes to the assets or liabilities from year to year. In providing for deferred taxes, the Company considers tax regulations of the jurisdictions in which the Company operates, estimates of future taxable income, and available tax planning strategies. If tax regulations, operating results or the ability to implement tax-planning strategies vary, adjustments to the carrying value of deferred tax assets and liabilities may be required. Valuation allowances are recorded related to deferred tax assets based on the “more likely than not” criteria of ASC 740.
ASC 740-10 requires that the Company recognize the financial statement benefit of a tax position only after determining that the relevant tax authority would more likely than not sustain the position following an audit. For tax positions meeting the “more-likely-than-not” threshold, the amount recognized in the financial statements is the largest benefit that has a greater than 50 percent likelihood of being realized upon ultimate settlement with the relevant tax authority.
Retained Earnings Distributions
The Company’s preferred stockholders are entitled to receive payment before any of the common stockholders upon a liquidation of the Company and we cannot pay dividends on our common stock unless we first pay dividends required by our preferred stock.
Consolidated Results of Operations - Banyan and Subsidiary
The following table summarizes our results for the years ended December 31, 2014 and 2013:
| Year ended December 31, | Variance | |||||||||||||||
| 2014 | 2013 | $ | % | |||||||||||||
| General & administrative expenses | $ | 7,000,404 | $ | 505,976 | $ | 6,494,428 | 1283.5 | % | ||||||||
| Loss from operations | (7,000,404 | ) | (505,976 | ) | (6,494,428 | ) | -1283.5 | % | ||||||||
| Interest expense | (4,087,656 | ) | (162,300 | ) | (3,925,356 | ) | -2418.6 | % | ||||||||
| Loss from continuing operations before income taxes and discontinued operations | (11,088,060 | ) | (668,276 | ) | (10,419,784 | ) | -1559.2 | % | ||||||||
| Loss from discontinued operations | - | (239,130 | ) | 239,130 | -100.0 | % | ||||||||||
| Gain attributable to discontinued operations | - | 2,050,233 | (2,050,233 | ) | -100.0 | % | ||||||||||
| Net (loss) income | $ | (11,088,060 | ) | $ | 1,142,827 | $ | (12,230,887 | ) | -1070.2 | % | ||||||
General and administrative expenses
General and administrative expenses include: compensation, professional fees and costs related to being a public company, amortization of identifiable intangible assets and other costs. The below table summarizes the general and administrative expenses for the years ended December 31, 2014 and 2013:
| G & A expenses | ||||||||||||||||
| For the years ending December 31, | ||||||||||||||||
| Variance | ||||||||||||||||
| 2014 | 2013 | $ | % | |||||||||||||
| Compensation costs | $ | 6,782,762 | $ | 224,811 | $ | 6,557,951 | 2917 | % | ||||||||
| Public company costs | 29,413 | 49,583 | (20,170 | ) | -41 | % | ||||||||||
| Accounting Fees | 51,500 | 89,945 | (38,445 | ) | -43 | % | ||||||||||
| Legal Fees | 45,362 | 94,401 | (49,039 | ) | -52 | % | ||||||||||
| Other costs | 23,839 | 7,680 | 16,159 | 210 | % | |||||||||||
| Rent Expense | - | (18,000 | ) | 18,000 | -100 | % | ||||||||||
| Insurance | 67,528 | 57,556 | $ | 9,972 | 17 | % | ||||||||||
| Consolidated general and administrative | $ | 7,000,404 | $ | 505,976 | $ | 6,494,428 | 1284 | % | ||||||||
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General and administrative expenses for the year ended December 31, 2014 were $7,000,404 as compared to $505,976 for the year ended December 31, 2013. The primary reason for the increase was an increase in compensation costs of $6,557,951 due to 1) an accounting charge of approximately $6,630,000 which related to the sale of common stock in a private placement, and 2) partly offset by a decrease in public company costs of $20,170, accounting fees of $38,445 and legal fees of $49,039 due to the Company’s shell status and lack of activity during 2014 as compared to 2013. These costs were offset by an increase in other costs of $16,159, rent expense of $18,000 and insurance of $9,972. The change in rent expense was due to a credit of $18,000 received in 2013 on rent. The Company shared office space in 2013 and 2014 with a related party at no cost. The increase in insurance is the result of normal price increases within the industry and the increase in other costs was due to travel associated with activities of the Company.
Interest expense
Interest expense was $4,087,656 for the year ended December 31, 2014 was comparable to $162,300 for the year ended December 31, 2013. The amounts were the result of discount interest paid to Banyan Holdings, on demand notes entered for which the Company entered into for $165,583 and a discount of $3,922,073 related to the sale of common stock in a private placement . See “Recent Events – Financing Agreements” for more information concerning the equity grants.
Income tax expense
Income tax expense was $0 for the years ended December 31, 2014 and 2013, respectively, due to a full valuation allowance being recorded by the Company for any deferred tax assets created as the result of any net operating losses generated by operations.
A valuation allowance offsets net deferred tax assets for which future realization is considered to be less likely than not. A valuation allowance is evaluated by considering all positive and negative evidence about whether the deferred tax assets will be realized. At the time of evaluation, the allowance can be either increased or reduced. A reduction could result in the complete elimination of the allowance, if positive evidence indicates that the value of the deferred tax assets is no longer impaired and the allowance is no longer required.
The Company's net deferred tax assets before valuation allowance as of December 31, 2014 was $2,277,318, most of which relates to net operating losses that expire from 2019 to 2034. The Company recorded an operating loss for the year and has a recent history of operating losses. After assessing the realization of the net deferred tax assets, we have recorded a valuation allowance of 100% of the value of the net deferred tax assets as we currently believe it more likely than not that the Company will not realize operating profits and taxable income so as to utilize all of the net operating losses in the near future.
Net income (loss) attributable to common stockholders
Net (loss) attributable to common shareholders was ($8.30) per share for the year ending December 31, 2014 as compared to net income attributable to common shareholders of $1.11 per share for the year ending December 31, 2013. The difference of ($9.71) per common share is primarily the result of an accounting charge of $10,552,629 or $7.90 per share to reflect the difference between the offering price and the quoted market price on a private placement of common stock, a net gain as a result of the disposal of the Company’s operating subsidiary of approximately $1.8 million from discontinued operations or $1.76 per share, which was offset by the reduction in administrative expenses of $0.25 per share.
Financial Condition and Liquidity
Cash consists of cash and short-term investments. Our cash balances at December 31, 2014 and 2013 were $402,401 and $27,124, respectively. The following is a summary of our cash flow activity for the years ended December 31, 2014 and 2013:
| Year ended December 31, | ||||||||
| 2014 | 2013 | |||||||
| Net cash used in operating activities | $ | (299,723 | ) | $ | (797,752 | ) | ||
| Net cash from financing activities | $ | 675,000 | $ | 819,131 | ||||
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Net cash used in operating activities
For the year ended December 31, 2014, our net loss of $(11,088,060) adjusted for non-cash expenses and benefits were $(467,925). This was offset by an increase in accounts payable which provided cash of $56,602 and a decrease in prepaid insurance which provided cash of $10,904.
For the year ended December 31, 2013, our net income of $(1,142,827) adjusted for non-cash expenses and benefits was $(899,358). This was offset by an increase in accounts payable of $100,508, a decrease in accounts receivable of $22,478 both of which provided cash and an increase in other current assets which used cash of $21,380.
At December 31, 2014, the Company had a net working capital of $93,183 as compared to a net working capital deficiency of approximately $563,000 at December 31, 2013. The change in net working capital is primarily the result of and the completion of an equity raise during December of 2014 in the amount of approximately $850,000. The Company recognizes that due to the lack of operations and cash flow that it will have to rely upon future capital contributions from investors to generate cash flow for the foreseeable future.
Net cash provided by financing activities
During 2014, the Company agreed to issue 2,777,778 shares of its common stock for $500,000 to Marino Family Holdings, LLC. Gary O. Marino, the Company’s chairman, is the manager of Marino Family Holdings, LLC and a significant owner of the Company. The proceeds from the sale of the Shares were used for working capital purposes. The shares were issued in January 2015. The Company recorded a discount of $6,027,778 to reflect the difference between the offering price and the quoted market price on the date the offering was subscribed. The discount is recorded as compensation expense for the period.
During 2014 the Company agreed to issue 833,333 shares of its common stock for $150,000 to Banyan Holdings. The proceeds of the sale were used to fund working capital requirements. In addition, the Company issued 111,791 shares of its common stock to Banyan Holdings in lieu of $400,429 of accrued dividends in 2013. The shares were issued in January 2015.
During 2014, the Company agreed to issue 138,889 shares of common stock to Coalbrookdale Partners as part of a private placement of common stock in exchange for the cancellation of advances made to the Company in the amount of $25,000. The proceeds of the advances were used to fund working capital requirements. Donald Denbo, a Director of the Company, is a partner in Coalbrookdale Partners. The shares were issued in January 2015. The Company recorded a discount of $301,389 to reflect the difference between the offering price and the quoted market price on the date the offering was subscribed. The discount is recorded as compensation expense for the period.
Preferred stock dividends for Series A, B and C are accrued for the semi-annual period ended December 31, 2014 in the amount of $400,564. During 2012, due to the lack of cash flow, the Company offered to pay the accrued dividends in common stock in lieu of cash. Substantially all preferred shareholders accepted the common stock in lieu of cash. In addition, On September 30, 2014 the Company completed an offering to its preferred stockholders to convert its outstanding Preferred Stock into common stock, in addition to its accrued and outstanding Preferred stock dividends into common shares. As a result of the two offerings the Company paid $573,564 of dividends in common stock in 2014.
New Accounting Pronouncements
Off-Balance Sheet Financing Arrangements
We do not have any material off-balance sheet financing arrangements.
Inflation
We do not believe inflation had a material impact on our results of operations for the years ended December 31, 2014 and 2013.
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Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
Not applicable.
Item 8. Financial Statements and Supplementary Data.
Our consolidated financial statements for the years ended December 31, 2014 and 2013 follow this annual report, beginning on page F-1.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure.
Not applicable.
Item 9A. Controls and Procedures.
Evaluation of Disclosure Controls and Procedures
As of December 31, 2014, our management, under the direction of our principal executive officer and principal financial officer, evaluated the effectiveness of the design and operation of the Company’s disclosure controls and procedures as defined in Rule 13a-15(e) of the Securities Exchange Act of 1934, as amended. Based on this evaluation, our chief executive officer and chief financial officer concluded that our disclosure controls and procedures were effective as of December 31, 2014.
Management’s Report on Internal Control over Financial Reporting
Our management is responsible for establishing and maintaining an adequate system of internal control over financial reporting as defined in Exchange Act Rule 13a-15(f). Our internal control over financial reporting is designed to provide reasonable assurance regarding the reliability of financial reporting and the preparation of the consolidated financial statements for external purposes in accordance with generally accepted accounting principles defined in the Exchange Act.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements and even when determined to be effective, can only provide reasonable assurance with respect to financial statement preparation and presentation. Also, projections of any evaluation of effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of compliance with policies or procedures may deteriorate.
At the end of December 31, 2014 we carried out evaluations under the direction of the Chief Executive Officer and Chief Financial Officer of our effectiveness of internal control over financial reporting. In making this evaluation, management used the criteria set forth in Internal Control Over Financial Reporting — Guidance for Smaller Public Companies (2006) issued by the Committee of Sponsoring Organizations of the Treadway Commission, or COSO. At December 31, 2014, based upon those evaluations, management concluded that our internal control over financial reporting was effective as of December 31, 2014.
Attestation Report of Independent Registered Public Accounting Firm
This annual report does not include an attestation report of our registered public accounting firms regarding internal control over financial reporting. Management’s report on internal control over financial reporting was not subject to attestation by our registered public accounting firms pursuant to Section 989G of the Dodd Frank Wall Street Reform and Consumer Protection Act and rules of the Securities and Exchange Commission.
None.
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Item 10. Directors, Executive Officers and Corporate Governance.
Directors and Executive Officers
Our directors and executive officers are:
Gary O. Marino, age 70, joined our board in January 2007, was appointed chairman in January 2008 and also served as our chief executive officer from November 2008 until he stepped down in October 2013. Mr. Marino served as chairman, president and CEO of Patriot Rail Corp. which was traded on the NYSE, an owner and operator of short line and regional railroads, from 2005 until 2012, and formerly held the same positions at RailAmerica, Inc. a company he founded in 1985, until his retirement in 2004. From 1984 until 1993, Mr. Marino served as chairman, president and CEO of Boca Raton Capital Corporation, a publicly owned venture capital investment company. Prior to that he spent more than fifteen years in commercial banking in New York as a senior loan officer and was also president and CEO of two small business investment companies (SBICs), as well as president of a Florida-based commercial bank. Mr. Marino received his B.A. degree from Colgate University and his M.B.A. from Fordham University. From 1966 to 1969, he served as an officer of the United States Army Ordnance Corps. He has also served on the board of directors of the American Association of Railroads. We believe Mr. Marino is well qualified to serve on the board due to his extensive knowledge of the railroad industry as well as his banking experience.
Paul S. Dennis, age 76, joined the board in January 2007 and was appointed interim chief financial officer in February 2007 and interim chief executive officer in April 2008. Mr. Dennis stepped down as interim CEO and CFO in November 2008. Mr. Dennis has served as president and CEO of Associated Health Care Management Company, Inc. since 1977. Health Care Management is a Cleveland, Ohio based company that managed eight nursing care facilities and four congregate living facilities. The company has sold all but one of its facilities. Mr. Dennis has also been a director and officer with various companies and business ventures in the hardware distribution, pharmaceuticals distribution and steel fabrication industries and a real estate developer, general contractor, owner and investor. We believe Mr. Dennis is highly qualified to serve on Banyan’s board due to his broad experience as an entrepreneur and CEO.
Donald D. Redfearn, age 62, joined the board in January 2012. Mr. Redfearn was appointed our Chief Executive Officer in October 2013, a position he held until December 2014. In addition he served as our President from May 2011 until October 2013. Mr. Redfearn has been the owner of Redfearn Enterprises, LLC, a real estate holding company, since 2007. From 2004 to 2007, he served as president of RailAmerica, Inc., a railroad holding company which was traded on the NYSE, and from 1989 to 2004 he served as executive vice president of RailAmerica. He also served as a director of RailAmerica since its inception in 1986 through 2007. Mr. Redfearn received his B.A. degree in Business Administration from the University of Miami and graduated from the School of Banking of the South at Louisiana State University. Active in local charities, Mr. Redfearn is a member of the United Way Leadership Circle. We believe Mr. Redfearn is highly qualified to serve as a director due to his experience in the railroad industry.
Jon Ryan, age 43, serves as and was appointed as Banyan Rail’s Chief Financial Officer in May 2011. In addition Mr. Ryan joined the board and was appointed as our President in October 2013 and as Chief Executive Officer in December 2014. He has over 16 years of major accounting firm experience, including as a Senior Assurance Manager at both Ernst & Young in Fort Lauderdale, Florida, and Smoak, Davis & Nixon LLP in Jacksonville, Florida. Most recently he was Corporate Controller at the The Gazit Group, USA, a subsidiary of Gazit-Globe, one of the world’s leading multi-national real estate development and management companies. Mr. Ryan, a CPA, holds a Bachelor of Business Administration from the University of North Florida. We believe Mr. Ryan is highly qualified to serve as a director due to his accounting experience.
Mark L. Friedman, age 67, was joined the board in October 2013. Mr. Friedman has over 40 years of business experience. Since 1993 Mr. Friedman has been a private equity and venture capital investor, currently serving as the Managing Partner of Constellation Investment Partners LLC (which he co-founded in 2001). He has also served as a director and audit committee member of several publicly-traded companies. While practicing corporate finance law as a partner at the law firm Shea & Gould, a major international law firm based in New York, Mr. Friedman represented primarily investment banking firms including Bear Sterns, Alex Brown, Drexel Burnham and Goldman Sachs. He co-founded RCL Capital Partners in 1992, which purchased substantial equity positions in Allied Digital Technologies and Disc Graphics. In 1986, he served as counsel and one of five principal investors in a structured leveraged buyout of Checker Motors Corporation. Mr. Friedman received a B.A. in History in 1970 (Magna Cum Laude) and a J.D. in 1973 (Cum Laude) from the University of Pennsylvania. He was elected to Phi Beta Kappa and served as Articles Editor of the University of Pennsylvania Law Review. We believe Mr. Friedman is highly qualified to serve on Banyan’s board due to his broad experience as an entrepreneur and attorney.
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Donald Denbo, age 65, joined the board in October 2013. Mr. Denbo has over 40 years of business experience, and is a founding member of Commercial Insurance Associates, LLC (CIA), an independent insurance agency specializing in risk management for a diversified client base. His knowledge and practice is varied, as it encompasses his more than 30 years of success in the insurance industry. In addition Mr. Denbo has been an owner of Denbo Metal Recovery and a director of Tennessee Valley Recycling LLC, Bancroft Technology Group, Jet Plex Associates, Shadow bluff Development, Reid Hill and Greymont Kennels, LLC. Mr. Denbo’s education includes a B.S. and M.S. in Psychology from the University of Tennessee, studies at the Vanderbilt School of Medicine and a PhD in Economics from the London School of Economics. We believe Mr. Denbo is highly qualified to serve on Banyan’s board due to his broad experience as an entrepreneur.
The board of directors has established certain attributes that it seeks in identifying candidates for directors. In particular they look for individuals who have very high integrity, business savvy, an owner-oriented attitude and a deep genuine interest in Banyan. These are the same attributes that Gary O. Marino, Banyan’s Chairman, believes to be essential if one is to be an effective member of the Board of Directors. In considering candidates for director, the board considers the entirety of each candidate’s credentials in the context of these attributes. In the judgment of the Board as a whole, each of the directors possesses such attributes.
Committees of the Board
We are currently a shell company without operations and are presently investigating potential acquisition candidates. As a result, our directors have not designated audit, nominating or other committees. Instead, these responsibilities are handled by the entire board. Without an audit committee, we have not designated a director as an “audit committee financial expert” as defined by SEC rules. Although we are pleased with the diverse skills and level of expertise that our directors possess, we may add additional directors as our operations grow and form appropriate committees at that time.
Code of Ethics
In March 2004, our board of directors unanimously adopted a code of conduct and ethics that applies to all of our officers, directors and employees, including our principal executive officer and principal financial and principal accounting officer. We will provide a copy of our code without charge upon written request to Jon Ryan, 2255 Glades Road, Suite 111-E, Boca Raton, Florida 33431.
Compliance with Section 16(a) of the Exchange Act
Section 16(a) of the Securities Act of 1934 requires our directors and executive officers, and persons who own more than 10% of our common stock, to make filings with the SEC reporting their ownership of our common stock and to furnish us with copies of these filings. In 2014, Gary O. Marino, our Chairman, failed to timely file a Form 4 on two occasions reporting the acquisition of shares of common stock. Also in 2014, Paul Dennis, a member of our board, failed to timely file a Form 4 reporting the acquisition of shares of common stock. Based solely on our review of copies of reports furnished to us, we believe all other Section 16(a) filing requirements were timely met in 2014. Copies of these filings are available on our website at www.banyanrail.net or the SEC’s website at www.sec.gov.
Director Nominations
Our board of directors does not have a nominating committee. Instead, the board believes it is in the best interests of the Company to rely on the insight and expertise of all directors in the nominating process.
Our directors will recommend qualified candidates for director to the full board and nominees are subject to approval by a majority of our board members. Nominees are not required to possess specific skills or qualifications; however, nominees are recommended and approved based on various criteria including relevant skills and experience, personal integrity and ability and willingness to devote their time and efforts to Banyan. Qualified nominees are considered without regard to age, race, color, sex, religion, disability or national origin. We do not use a third party to locate or evaluate potential candidates for director. The board of directors considers nominees recommended by stockholders according to the same criteria. A stockholder desiring to nominate a director for election must deliver a notice to our president at our principal executive office. The notice must include as to each person whom the stockholder proposes to nominate for election or re-election as director:
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| • | the name, age, business address and residence address of the person, | |
| • | the principal occupation or employment of the person, | |
| • | the written consent of the person being named in the proxy as a nominee and to serving as a director, | |
| • | the class and number of our shares of stock beneficially owned by the person, and | |
| • | any other information relating to the person that is required to be disclosed in solicitations for proxies for election of director pursuant to Rule 14a under the Securities Exchange Act of 1934; |
and as to the stockholder giving the notice:
| • | the name and record address of the stockholder, and | |
| • | the class and number of our shares beneficially owned by the stockholder. |
We may require any proposed nominee to furnish additional information reasonably required by us to determine the eligibility of the proposed nominee to serve as our director.
Item 11. Executive Compensation.
Summary Compensation Table
The following table summarizes the compensation paid by us to our chairman, president and chief executive officer and our other most highly compensated executive officers receiving more than $100,000 annually.
| Name and Principal Position * | Year | Salary ($) | Bonus ($) | Option Awards ($) | All Other Compensation ($) | Total ($) | ||||||||||||||||||
| Gary O. Marino | 2014 | — | — | — | — | — | ||||||||||||||||||
| Chief Executive Officer (former) | 2013 | — | — | — | — | — | ||||||||||||||||||
| Donald D. Redfearn | 2014 | — | — | — | — | — | ||||||||||||||||||
| Chief Executive Officer (former) | 2013 | — | — | — | — | — | ||||||||||||||||||
| Jon Ryan | 2014 | 142,522 | 25,000 | — | — | 167,522 | ||||||||||||||||||
| Chief Executive and Financial Officer | 2013 | 161,653 | 25,000 | — | — | 186,653 | ||||||||||||||||||
| (*) | Mr. Marino and Mr. Redfearn do not receive compensation for service as our chairman, or as chief executive officer, respectively. Mr. Marino was appointed and served as our chief executive officer from November 2008 and served until October 2013. Mr. Redfearn was appointed our chief executive officer in October 2013 and served until December 2014. |
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Outstanding Equity Awards at December 31, 2014
The following table summarizes information with respect to the stock options held by the executive officers and employees listed in our summary compensation table as of December 31, 2014.
| Name | Number of Underlying Unexercised Options Exercisable | Number of Underlying Unexercised Options Un-exercisable | Option Exercise Price | Option Expiration Date |
|||||||||||
| Gary O. Marino | 5,000 | — | $ | 13.50 | 02/11/2015 | (1) | |||||||||
| Donald Redfearn | 5,000 | — | $ | 13.50 | 02/11/2015 | (2) | |||||||||
| Jon Ryan | 5,000 | — | $ | 10.30 | 06/26/2016 | (3) | |||||||||
| (1) | Options vested in quarterly installments which began March 31, 2010. |
| (2) | Options vest in quarterly installments which began March 31, 2010. |
| (3) | Options vest in three annual installments which began July 26, 2012. |
Director Compensation
No compensation was paid to our directors in 2014.
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Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters.
The following table lists the stock ownership of our directors, executive officers and significant stockholders as of March 1, 2015.
| Name and Address(1) | Common Stock | Stock Options(2) | Preferred Stock | Total | Percentage(7) | |||||||||||||||
| Gary O. Marino(3) | ||||||||||||||||||||
| 2255 Glades Road, Suite 111-E | ||||||||||||||||||||
| Boca Raton, FL 33431 | 5,509,725 | - | 5,509,725 | 85.6 | % | |||||||||||||||
| Paul S. Dennis(4) | ||||||||||||||||||||
| 16330 Vintage Oaks Lane, | ||||||||||||||||||||
| Delray Beach, FL 33484 | 166,920 | - | 166,920 | 2.6 | % | |||||||||||||||
| Donald D. Redfearn | ||||||||||||||||||||
| 2255 Glades Road, Suite 111-E | ||||||||||||||||||||
| Boca Raton, FL 33431 | 2,000 | - | 2,000 | 0.0 | % | |||||||||||||||
| Jon Ryan (5) | ||||||||||||||||||||
| 2255 Glades Road, Suite 111-E | ||||||||||||||||||||
| Boca Raton, FL 33431 | 138,889 | 5,000 | 143,889 | 2.2 | % | |||||||||||||||
| Donald Denbo (6) | ||||||||||||||||||||
| 2255 Glades Road, Suite 111-E | ||||||||||||||||||||
| Boca Raton, FL 33431 | 158,841 | - | - | 158,841 | 2.5 | % | ||||||||||||||
| Mark Friedman | ||||||||||||||||||||
| 2255 Glades Road, Suite 111-E | ||||||||||||||||||||
| Boca Raton, FL 33431 | - | - | - | 0.0 | % | |||||||||||||||
| All directors, and executive officers as a group | 5,976,375 | 5,000 | 0 | 5,981,375 | 92.9 | % | ||||||||||||||
| (1) | Unless otherwise indicated, we believe that all persons named in the table have sole voting and investment power over the shares of stock owned. |
| (2) | Shares of common stock the beneficial owners have the right to acquire through stock options that are or will become exercisable within 60 days. |
| (3) | 2,726,114 shares of common stock are held by Banyan Rail Holdings LLC. Gary O. Marino, the Company’s Chairman, is the President and a significant stockholder of Banyan Rail Holdings LLC. 2,777,778 shares of common stock are held by Marino Family Holdings, LLC. Mr. Marino is the manager of Marino Family Holdings, LLC. |
| (4) | 166,920 shares of common stock are owned by Paul S. Dennis, Trustee under the Paul S. Dennis Trust Agreement dated August 9, 1983, as modified. |
| (5) | 5,000 options issued on July 26, 2011. The options vest in three equal annual installments beginning July 26, 2012 and expire July 26, 2016. |
| (6) | All shares of common stock are held by the Coalbrookdale Partners, for which Mr. Denbo is a partner. |
| (7) | Assumes the exercise of options into common stock by that beneficial owner, but no others. |
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Equity Compensation Plan Information
We have not issued any other options, warrants or rights in 2014 or 2013. In 2014 and 2013, 17,500 and 600 options expired for our directors and a former employee, respectively. Our equity plans are summarized in the following table.
| Plan category | Number of securities to be issued upon exercise of outstanding options | Weighted- average exercise price of outstanding options | Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in the first column) | |||||||||
| Equity compensation plans approved by security holders | 5,000 | $ | 2.24 | 272,000 | ||||||||
| Equity compensation plans not approved by security holders | — | — | — | |||||||||
| Total | 5,000 | $ | 2.24 | — | ||||||||
Item 13. Certain Relationships and Related Transactions, and Director Independence.
Transactions with Related Parties
On March 20, 2013, the Company issued 112,822 shares of common stock to Banyan Holdings in exchange for the cancellation of the loan payable in the amount of $225,000 and the advances of $186,800.
On September 24, 2013, the Company issued 4,000 shares of common stock to Gary O. Marino for $7.50 a share or $30,000 in total, and 48,000 Shares to Banyan Holdings for $7.50 a share or $360,000 ($203,000 of cash and $157,000 in cancellation of previous advances) in total. The proceeds from the sale were used for working capital purposes.
Also in September and November 2013, the Company issued 6,000 shares of common stock to officers and directors of the Company for $7.50 a share, for an aggregate total of $45,000, as part of a private placement of common stock. The proceeds of the sale were used to fund working capital requirements.
On October 31, 2013, the Company issued 4,000 shares of common stock to Coalbrookdale Partners for a price of $7.50 a share, as part of a private placement of common stock in exchange for cash in the amount of $30,000. The proceeds of the sale were used to fund working capital requirements. Donald Denbo, a Director of the Company, is a partner in Coalbrookdale Partners.
On December 31, 2013, the Company entered into a demand promissory note with Banyan Holdings in the amount of $150,000 at an annual interest rate of 10%. The proceeds were used to fund working capital requirements. In connection with the demand promissory note, the Company issued 16,230 shares of common stock to Banyan Holdings on January 21, 2014 to induce Banyan Holdings to loan the Company working capital.
On September 30, 2014 the Company completed an offering to its preferred stockholders to convert its outstanding Preferred Stock into common stock, in addition to its accrued and outstanding Preferred stock dividends into common shares. As a result of this offering the holders of substantially all of the preferred stock agreed to convert and the Company agreed to issue 442,145 shares of common stock in conjunction with this conversion. The shares were issued on November 18, 2014.
On December 29, 2014, the Company agreed to issue 1,807,408 shares of common stock (“Shares”) to Banyan Rail Holdings, LLC for $0.18 a share in exchange for cancellation of two (2) notes receivable plus accrued interest in the amount $325,333. The Company obtained an opinion of an independent investment banking firm that the price of $0.18 a share is fair to the Company. Gary O. Marino, the Company’s chairman, is the president of Banyan Rail Holdings, LLC and a significant owner of the Company. The shares were issued in January 2015. The Company recorded a discount of $3,922,073 to reflect the difference between the offering price and the quoted market price on the date the offering was subscribed. The discount is recorded as interest expense for the period.
| 21 |
Also on December 29, 2014, the Company agreed to issue 2,777,778 Shares to Marino Family Holdings, LLC for $0.18 a share or $500,000 in total. The Company obtained an opinion of an independent investment banking firm that the price of $0.18 a share is fair to the Company. Gary O. Marino, the Company’s chairman, is the manager of Marino Family Holdings, LLC. and a significant owner of the Company. The proceeds from the sale of the Shares were used for working capital purposes. The shares were issued in January 2015. The Company recorded a discount of $6,027,778 to reflect the difference between the offering price and the quoted market price on the date the offering was subscribed. The discount is recorded as compensation expense for the period.
Also on December 29, 2014, the Company agreed to issue 138,889 Shares to Jon Ryan for $0.18 a share, or $25,000 in total. The Company obtained an opinion of an independent investment banking firm that the price of $0.18 a share is fair to the Company. Mr. Ryan is the Company’s Chief Executive Officer, President and Chief Financial Officer of the Company. The shares were issued in January 2015. The Company recorded a discount of $301,389 to reflect the difference between the offering price and the quoted market price on the date the offering was subscribed. The discount is recorded as compensation expense for the period.
During 2014, the Company agreed to issue 138,889 shares of common stock for $0.18 a share to Coalbrookdale Partners as part of a private placement of common stock in exchange for the cancellation of advances made to the Company in the amount of $25,000. The Company obtained an opinion of an independent investment banking firm that the price of $0.18 a share is fair to the Company. The proceeds of the advances were used to fund working capital requirements. Donald Denbo, a Director of the Company, is a partner in Coalbrookdale Partners. The shares were issued in January 2015. The Company recorded a discount of $301,389 to reflect the difference between the offering price and the quoted market price on the date the offering was subscribed. The discount is recorded as compensation expense for the period.
Preferred stock dividends for Series A, B and C are accrued for the semi-annual period ended December 31, 2014 in the amount of $176,759. During 2012, due to the lack of cash flow, the Company offered to settle the accrued dividends in common stock in lieu of cash. Substantially all preferred shareholders accepted the common stock in lieu of cash and the common shares for these dividends. As part of this offer, in January 2015, the Company issued 10,921 shares of common stock in lieu of $51,875 of the dividends accrued at year end.
Director Independence
Our board has determined that three of our six directors, Paul S. Dennis, Donald Denbo and Mark L. Friedman, are “independent” as defined by NASDAQ Stock Market Listing Rule 5605(a) (2). Although we are not listed for trading on the NASDAQ stock market, we have selected the NASDAQ rules as an appropriate guideline for determining the independence of our board members.
Item 14. Principal Accounting Fees and Services.
Daszkal Bolton LLP serves as our independent registered public accounting firm and was paid $44,800 and $77,250 for their audit and review of the financial statements and financial information contained in our filings for the years ended December 31, 2014 and 2013, respectively. Additionally, Daszkal Bolton LLP has been approved by the audit committee and paid $6,700 and $12,695 to perform certain tax services for the years ended December 31, 2014 and 2013, respectively.
Because of the small size of our board, the directors have not designated an audit committee. Instead, these responsibilities are handled by the entire board, which considers and pre-approves any audit or non-audit services to be performed by Daszkal Bolton LLP. Our board believes the services provided by Daszkal Bolton LLP are compatible with maintaining our auditor’s independence.
| 22 |
Item 15. Exhibits, Financial Statement Schedules.
| (b) | Exhibit Index. |
| 3.1 | Restated Certificate of Incorporation. Exhibit 3.1 to the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2009 as filed April 15, 2010 is incorporated by reference herein.
|
| 3.2 | Certificate of Amendment of Certificate of Incorporation of B.H.I.T. Inc. Exhibit 3.1 to the Form 8-K filed January 6, 2010 is incorporated by reference herein.
|
| 3.3 | Certificate of Correction. Exhibit 3.1 to the Form 8-K filed March 14, 2011 is incorporated by reference herein.
|
| 3.4 | Certificate of Designation of Series A Preferred Stock. Exhibit 3.1 to the Form 8-K dated February 1, 2010 is incorporated by reference herein.
|
| 3.5 | Certificate of Designation of Series B Preferred Stock. Exhibit 3.1 to the Form 8-K dated October 18, 2010 is incorporated by reference herein.
|
| 3.6 | Certificate of Designation of Series C Preferred Stock. Exhibit 3.1 to the Form 8-K dated July 5, 2011 is incorporated by reference herein.
|
| 3.7 | Certificate of Amendment to Certificate of Designation of Series C Preferred Stock. Exhibit 3.1 to the Form 8-K dated April 11, 2012 is incorporated by reference herein.
|
| 3.8* | Certificate of Amendment to Certificate of Incorporation of Banyan Rail Services Inc.
|
| 3.9 | Amended and Restated Bylaws of the Registrant. Exhibit D to the Definitive Proxy Statement filed August 9, 2000 is incorporated by reference herein.
|
| 10.1 | Demand promissory note of Banyan Rail Services, Inc. in the original principal amount of $150,000 payable to Banyan Holdings, LLC dated November 12, 2012. Exhibit 10.1 to the Form 10-Q for the quarter ended September 30, 2012 as filed on November 19, 2012 is incorporated by reference herein.
|
| 10.2 | Demand Promissory Note of Banyan Rail Services Inc. in the original principal amount of $150,000 payable to Banyan Rail Holdings LLC dated December 31, 2013. Exhibit 10.1 to the Form 8-K as filed on January 7, 2014 is incorporated by reference herein.
|
| 10.3 | Demand Note and Loan Agreement of Banyan Rail Services Inc. in the original principal amount of up to $200,000 payable to Banyan Rail Holdings LLC dated February 14, 2014. Exhibit 10.1 to the Form 8-K as filed February 19, 2014 is incorporated by reference herein. |
| 14.1 | Code of Ethics. Exhibit 14 to the Registrant’s Form 10-K for the fiscal year ended December 31, 2006 filed on April 16, 2007 is incorporated by reference herein.
|
| 31.1* | Rule 13a-14(a)/15d-14(a) Certification of Principal Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
|
| 31.2* | Rule 13a-14(a)/15d-14(a) Certification of Principal Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 |
| 23 |
| 32.1* | Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
|
| 101.INS | XBRL Instance Document
|
| 101.SCH | XBRL Schema Document
|
| 101.CAL | XBRL Calculation Linkbase Document
|
| 101.DEF | XBRL Definition Linkbase Document
|
| 101.LAB | XBRL Label Linkbase Document
|
| 101.PRE | XBRL Presentation Linkbase Document |
*Filed herewith.
**Management contract or compensatory plan or arrangement.
| 24 |
In accordance with Section 13 or 15(d) of the Exchange Act, Banyan Rail Services Inc. caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| Banyan Rail Services Inc. | ||
| Date: March 25, 2015 | /s/ Jon Ryan | |
| By Jon Ryan, | ||
| President and Chief Executive Officer | ||
| (Principal Executive Officer) | ||
| Date: March 25, 2015 | /s/ Jon Ryan | |
| By Jon Ryan, | ||
| Chief Financial Officer | ||
| (Principal Financial and Accounting Officer) | ||
In accordance with the Exchange Act, this report has been signed below by the following persons on behalf of Banyan Rail Services Inc. and in the capacities and on the dates indicated.
| Date: March 25, 2015 | /s/ Gary O. Marino | |
| By Gary O. Marino, | ||
| Chairman of the Board | ||
| Date: March 25, 2015 | /s/ Donald D. Redfearn | |
| By Donald D. Redfearn, | ||
| Director | ||
| Date: March 25, 2015 | /s/ Jon Ryan | |
| By Jon Ryan, | ||
| Chief Executive Officer, President, Chief Financial Officer and Director | ||
| Date: March 25, 2015 | /s/ Paul S. Dennis | |
| By Paul S. Dennis, Director | ||
| Date: March 25, 2015 | /s/ Donald Denbo | |
| By Donald Denbo, Director | ||
| Date: March 25, 2015 | /s/ Mark L. Friedman | |
| By Mark L. Friedman, Director | ||
| 25 |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the
Board of Directors and Stockholders
Banyan Rail Services, Inc.
Boca Raton, Florida
We have audited the accompanying consolidated balance sheets of Banyan Rail Services, Inc. (the “Company”) as of December 31, 2014 and 2013, and the related consolidated statements of operations, stockholders’ equity (deficit), and cash flows for each of the years then ended. The Company’s management is responsible for these consolidated financial statements. Our responsibility is to express an opinion on these consolidated financial statements based on our audits.
We conducted our audits in accordance with the standards of the Public Company Accounting Oversight Board (United States). Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the consolidated financial statements are free of material misstatement. The company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. Our audit included consideration of internal control over financial reporting as a basis for designing audit procedures that are appropriate in the circumstances, but not for the purpose of expressing an opinion on the effectiveness of the company’s internal control over financial reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements, assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of the Company as of December 31, 2014 and 2013, and the results of its operations and its cash flows for each of the years then ended, in conformity with accounting principles generally accepted in the United States of America.
| /s/ Daszkal Bolton, LLP | |
| Boca Raton, Florida | |
| March 25, 2015 | |
| 26 |
Banyan Rail Services Inc. and Subsidiary
Consolidated Balance Sheets
| December 31, 2014 | December 31, 2013 | |||||||
| ASSETS | ||||||||
| Current assets | ||||||||
| Cash | $ | 402,401 | $ | 27,124 | ||||
| Prepaid expenses | - | 10,904 | ||||||
| Total current assets | 402,401 | 38,028 | ||||||
| Total assets | $ | 402,401 | $ | 38,028 | ||||
| LIABILITIES AND STOCKHOLDERS' DEFICIT | ||||||||
| Current liabilities | ||||||||
| Accounts payable | $ | 33,895 | $ | 30,293 | ||||
| Accrued payroll | 20,869 | 33,311 | ||||||
| Accrued professional fees | 14,706 | 3,123 | ||||||
| Accrued expenses | - | 1,623 | ||||||
| Advances - related parties | 30,481 | - | ||||||
| Demand loans - related party | - | 150,000 | ||||||
| Accrued dividends | 209,267 | 382,267 | ||||||
| Total liabilities | 309,218 | 600,617 | ||||||
| Commitments and contingencies | - | - | ||||||
| Stockholders' equity | ||||||||
| Series A Preferred stock, $.01 par value. 20,000 shares authorized and 10,375 and 20,000 shares issued at December 31, 2014 and 2013, respectively | 104 | 200 | ||||||
| Series B Preferred stock, $.01 par value. 10,000 shares authorized and issued at December 31, 2013 | - | 552,817 | ||||||
| Series C Preferred stock, $.01 par value. 20,000 shares authorized. 0 and 19,950 shares issued at December 31, 2014 and 2013, respectively | - | 1,995,000 | ||||||
| Common stock, $0.01 par value. 7,500,000 shares authorized. 1,563,424 and 1,036,945 issued as of December 31, 2014 and 2013, respectively | 15,633 | 10,369 | ||||||
| Accrued common stock payable | 11,427,963 | 162,300 | ||||||
| Additional paid-in capital | 97,273,708 | 94,252,890 | ||||||
| Accumulated deficit | (108,553,536 | ) | (97,465,476 | ) | ||||
| Treasury stock, at cost, for 5,655 shares | (70,689 | ) | (70,689 | ) | ||||
| Total stockholders' equity (deficit) | 93,183 | (562,589 | ) | |||||
| Total liabilities and stockholders' equity | $ | 402,401 | $ | 38,028 | ||||
See Notes to Consolidated Financial Statements
| 27 |
Banyan Rail Services Inc. and Subsidiary
Consolidated Statements of Operations
| Year ended December 31, | ||||||||
| 2014 | 2013 | |||||||
| General & administrative expenses | $ | 7,000,404 | $ | 505,976 | ||||
| Loss from operations | (7,000,404 | ) | (505,976 | ) | ||||
| Interest expense | (4,087,656 | ) | (162,300 | ) | ||||
| Loss from continuing operations before income taxes and discontinued operations | (11,088,060 | ) | (668,276 | ) | ||||
| Loss from discontinued operations | - | (239,130 | ) | |||||
| Gain attributable to discontinued operations | - | 2,050,233 | ||||||
| Net (loss) income | $ | (11,088,060 | ) | $ | 1,142,827 | |||
| Dividends for the benefit of preferred stockholders: | ||||||||
| Preferred stock dividends | (400,564 | ) | (499,501 | ) | ||||
| Amortization of preferred stock beneficial conversion feature | - | (122,958 | ) | |||||
| Total dividends for the benefit of preferred stockholders | (400,564 | ) | (622,459 | ) | ||||
| Net (loss) income attributable to common stockholders | $ | (11,488,624 | ) | $ | 520,368 | |||
| Weighted average number of common shares outstanding: | ||||||||
| Basic and diluted | 1,335,128 | 1,033,814 | ||||||
| Net loss per common share from continuing operations, basic and diluted | $ | (8.30 | ) | $ | (0.65 | ) | ||
| Net income per common share from discontinued operations, basic and diluted | - | 1.76 | ||||||
| Net (loss) income per common share, basic and diluted | $ | (8.30 | ) | $ | 1.11 | |||
| Net (loss) income attributable to common shareholders per share | $ | (8.60 | ) | $ | 0.50 | |||
See Notes to Consolidated Financial Statements.
| 28 |
Banyan Rail Services Inc. and Subsidiary
Consolidated Statements of Cash Flows
| Year ended December 31, | ||||||||
| 2014 | 2013 | |||||||
| Cash flows from operating activities: | ||||||||
| Net (loss) income | $ | (11,088,060 | ) | $ | 1,142,827 | |||
| Adjustments to reconcile net (loss) income to net cash used in operating activities: | ||||||||
| Depreciation | - | 2,445 | ||||||
| Stock compensation expense | 6,633,175 | 5,189 | ||||||
| Stock in lieu of cash interest | 4,087,656 | - | ||||||
| Loss on sales of equipment | - | 414 | ||||||
| Gain on discontinued operations | - | (2,050,233 | ) | |||||
| Changes in assets and liabilities, net of effects of discontinued operations: | ||||||||
| Increase in accounts receivable | - | 22,478 | ||||||
| (Increase) Decrease in prepaid expenses and other current assets | 10,904 | (21,380 | ) | |||||
| Increase in accounts payable and accrued expenses | 56,602 | 100,508 | ||||||
| Net cash used in operating activities | (299,723 | ) | (797,752 | ) | ||||
| Cash flows from financing activities: | ||||||||
| Proceeds from sale of common stock | 650,000 | 308,000 | ||||||
| Proceeds on demand loan - related party | - | 493,800 | ||||||
| Increase in common stock payable | 25,000 | 162,300 | ||||||
| Payment of settlement agreement | - | (200,000 | ) | |||||
| Proceeds from line of credit | - | 55,031 | ||||||
| Net cash provided by financing activities | 675,000 | 819,131 | ||||||
| Net (decrease) increase in cash | 375,277 | 21,379 | ||||||
| Cash, beginning of year | 27,124 | 5,745 | ||||||
| Cash, end of year | $ | 402,401 | $ | 27,124 | ||||
| Supplemental disclosure of cash flow information: | ||||||||
| Non cash financing activities: | ||||||||
| Preferred stock dividend in excess of payments | $ | 400,564 | $ | 354,517 | ||||
| Issuance of common shares in lieu of cash dividends payable | $ | 573,564 | $ | 378,895 | ||||
| Issuance of shares in settlement of loans and advances payable | $ | - | $ | 411,800 | ||||
| Issuance of shares in lieu of cash interest | $ | 4,249,956 | $ | - | ||||
See Notes to Consolidated Financial Statements.
| 29 |
Banyan Rail Services Inc. and Subsidiary
Consolidated Statements of Stockholders’ Equity (Deficit)
Periods Ended December 31, 2014 and December 31, 2013
| Common Stock | Preferred Stock | Treasury Stock | ||||||||||||||||||||||||||||||||||||||
| Shares Issued | Amount | Common Stock Payable | Shares Issued | Amount | Additional
Paid in Capital | Accumulated Deficit | Shares | Amount | Total | |||||||||||||||||||||||||||||||
| Stockholders’ equity December 31, 2012 | 696,128 | $ | 6,961 | $ | 0 | 49,950 | $ | 2,670,975 | $ | 93,149,957 | $ | (98,608,303 | ) | 5,655 | $ | (70,689 | ) | $ | (2,851,099 | ) | ||||||||||||||||||||
| Amortization of beneficial conversion feature preferred stock - Series B | (122,958 | ) | 122,958 | - | ||||||||||||||||||||||||||||||||||||
| Issuance of common stock | 340,817 | 3,408 | 1,474,287 | 1,477,695 | ||||||||||||||||||||||||||||||||||||
| Common stock payable | 162,300 | 162,300 | ||||||||||||||||||||||||||||||||||||||
| Stock compensation expense | 5,189 | 5,189 | ||||||||||||||||||||||||||||||||||||||
| Net income for the year ended December 31, 2013 | 1,142,827 | 1,142,827 | ||||||||||||||||||||||||||||||||||||||
| Preferred stock dividends | (499,501 | ) | (499,501 | ) | ||||||||||||||||||||||||||||||||||||
| Stockholders’ (deficit) equity December 31, 2013 | 1,036,945 | $ | 10,369 | $ | 162,300 | 49,950 | 2,548,017 | $ | 94,252,890 | $ | (97,465,476 | ) | 5,655 | (70,689 | ) | $ | (562,589 | ) | ||||||||||||||||||||||
| Issuance of common stock | 526,479 | 5,264 | (162,300 | ) | (39,575 | ) | (2,547,913 | ) | (3,211,793 | ) | (5,916,742 | ) | ||||||||||||||||||||||||||||
| Common stock payable | 11,427,963 | 11,427,963 | ||||||||||||||||||||||||||||||||||||||
| Stock compensation expense | 6,633,175 | 6,633,175 | ||||||||||||||||||||||||||||||||||||||
| Net loss for the year ended December 31, 2014 | (11,088,060 | ) | (11,088,060 | ) | ||||||||||||||||||||||||||||||||||||
| Preferred stock dividends | (400,564 | ) | (400,564 | ) | ||||||||||||||||||||||||||||||||||||
| Stockholders’ equity (deficit) December 31, 2014 | 1,563,424 | $ | 15,633 | $ | 11,427,963 | 10,375 | $ | 104 | $ | 97,273,708 | $ | (108,553,536 | ) | 5,655 | $ | (70,689 | ) | $ | 93,183 | |||||||||||||||||||||
See Notes to Consolidated Financial Statements.
Notes to Consolidated Financial Statements.
Note 1. Nature of Operations
Banyan Rail Services Inc. (“Banyan,” “we,” “our” or the “Company”) was originally organized under the laws of the Commonwealth of Massachusetts in 1985, under the name VMS Hotel Investment Trust, for the purpose of investing in mortgage loans, principally to entities affiliated with VMS Realty Partners. The Company was subsequently reorganized as a Delaware corporation in 1987 and changed its name to B.H.I.T. Inc. In 2010, the Company changed its name from B.H.I.T. Inc. to Banyan Rail Services Inc. and purchased The Wood Energy Group, Inc. (“Wood Energy” or “Wood”). Wood Energy was engaged in the business of railroad tie reclamation and disposal.
On January 11, 2013, Wood Energy filed a voluntary petition for reorganization relief under the provisions of Chapter 11 of Title 11 of the United States Bankruptcy Code in the United States Bankruptcy Court Southern District of Florida, which was voluntarily converted into a Chapter 7 bankruptcy on February 5, 2013. The assets of Wood were liquidated by the Trustee of the Bankruptcy Court. The proceeds from the sale were used to satisfy a portion of secured claims, with the remainder if any, allocated to the unsecured claims.
The Company is actively seeking acquisitions of leading companies within the industrial, energy, transportation, technology and health care industries throughout North America.
See Note 9, Subsidiary Bankruptcy and Settlement Agreement, regarding a settlement of the corporate guarantee for certain debts.
| 30 |
Note 2. Basis of Presentation
The accompanying consolidated financial statements give effect to all adjustments necessary to present fairly the financial position and results of operations and cash flows of the Company. All significant intercompany transactions and accounts have been eliminated in consolidation.
Certain reclassifications have been made to the 2013 financial statements to conform to the classifications used in 2014. In September 2013, the Company effectuated a 1 for 5 reverse split of its common stock. Share and per share amounts have been adjusted retroactively to reflect this transaction.
| 31 |
Note 3. Summary of Significant Accounting Policies
Use of Estimates
The preparation of financial statements, in conformity with accounting principles generally accepted in the United States, requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Significant estimates include the useful lives of property and equipment, and the useful lives of intangible assets.
Cash
The Company considers all cash, bank deposits and highly liquid investments with an original maturity of three months or less to be cash equivalents. From time to time our cash deposits exceed federally insured limits.
Fair Value of Financial Instruments
Recorded financial instruments as of December 31, 2014 consist of cash, accounts payable and short-term obligations. The related fair values of these financial instruments approximated their carrying values due to either the short-term nature of these instruments or based on the interest rates currently available to the Company.
Earnings Per Share
Basic earnings (loss) per share is computed based on the weighted average shares outstanding during the period. Diluted earnings (loss) per share is computed using the weighted average number of common and dilutive common stock equivalent shares outstanding during the period. Dilutive common stock equivalent shares consist of the dilutive effect of stock options and convertible preferred stock equivalents.
Income Taxes
The Company accounts for income taxes in accordance with ASC 740, Accounting for Income Taxes, as clarified by ASC 740-10, Accounting for Uncertainty in Income Taxes. Under this method, deferred income taxes are determined based on the estimated future tax effects of differences between the financial statement and tax basis of assets and liabilities given the provisions of enacted tax laws.
Deferred income tax provisions and benefits are based on changes to the assets or liabilities from year to year. In providing for deferred taxes, the Company considers tax regulations of the jurisdictions in which the Company operates, estimates of future taxable income, and available tax planning strategies. If tax regulations, operating results or the ability to implement tax-planning strategies vary, adjustments to the carrying value of deferred tax assets and liabilities may be required. Valuation allowances are recorded related to deferred tax assets based on the “more likely than not” criteria of ASC 740.
ASC 740-10 requires that the Company recognize the financial statement benefit of a tax position only after determining that the relevant tax authority would more likely than not sustain the position following an audit. For tax positions meeting the “more-likely-than-not” threshold, the amount recognized in the financial statements is the largest benefit that has a greater than 50 percent likelihood of being realized upon ultimate settlement with the relevant tax authority.
Retained Earnings distributions
The Company’s preferred stockholders are entitled to receive payment before any of the common stockholders upon a liquidation of the Company and we cannot pay dividends on our common stock unless we first pay dividends required by our preferred stock.
| 32 |
Note 4. Liquidity
At and for the year ended December 31, 2014, the Company had a net working capital of $93,183. The Company incurred negative cash flows from operating activities of $299,723. The Company’s future liquidity and capital requirements are dependent upon many factors, including our ability to identify and complete acquisitions and the success of any business we do acquire. We may need to raise additional funds in order to meet working capital requirements or additional capital expenditures or to take advantage of other opportunities. We cannot be certain that we will be able to obtain additional financing on favorable terms or at all. If we are unable to raise needed capital, our growth may be impeded. In addition, if we raise capital by selling additional shares of stock, your percentage ownership in Banyan will be diluted.
Note 5. Preferred Stock and Common Stock
On September 30, 2014 the Company completed an offering to its preferred stockholders to convert its outstanding Preferred Stock into common stock, in addition to its accrued and outstanding Preferred stock dividends into common shares. As a result of this offering the holders of substantially all of the preferred stock agreed to convert and the Company agreed to issue 442,145 shares of common stock in conjunction with this conversion. The shares were issued on November 18, 2014.
Preferred stock dividends for Series A, B and C are accrued for the semi-annual period ended December 31, 2014 in the amount of $209,267. During 2012, due to the lack of cash flow, the Company offered to pay the accrued dividends in common stock in lieu of cash. Substantially all preferred shareholders accepted the common stock in lieu of cash and the common shares for these dividends.
As of December 31, 2014, Banyan Rail Holdings LLC (“Banyan Holdings”) owned 918,706 shares of Common stock and had subscribed to 1,807,408 shares of common stock (see Note 9).
Note 6. Stock-Based Compensation
The Company has stock option agreements with its directors for serving on the Company’s board of directors and with certain officers and employees as part of their compensation. The option activity is as follows for the years ended December 31, 2014 and 2013:
| Weighted Average | Weighted Average | Weighted Average | ||||||||||||||||||
| Number | Exercise Price | Fair Value at | Remaining | Intrinsic | ||||||||||||||||
| of Shares | per Share | Grant Date | Contractual Life | Value | ||||||||||||||||
| Balance January 1, 2013 | 45,600 | 14.80 | 0.4 years | - | ||||||||||||||||
| Options granted | - | - | $ | 0 | - | - | ||||||||||||||
| Options exercised | - | - | - | - | ||||||||||||||||
| Options expired | (600 | ) | $ | (0.05 | ) | - | - | |||||||||||||
| Balance, January 1, 2014 | 45,000 | $ | 14.75 | 0.4 years | $ | - | ||||||||||||||
| Options granted | - | - | $ | 0 | - | - | ||||||||||||||
| Options exercised | - | - | - | - | ||||||||||||||||
| Options expired | (17,500 | ) | $ | (1.83 | ) | - | - | |||||||||||||
| Balance, December 31, 2014 | 27,500 | $ | 12.92 | 0.4 years | $ | - | ||||||||||||||
Prior to June 30, 2010 the Company had not adopted a formal stock option plan. The number of options issued and the grant dates were determined at the discretion of the Company’s Board. Certain options vest at the date of grant and others vest over a one year period. The options are exercisable for periods not exceeding three to five years from the date of grant. On July 1, 2010 at its annual meeting of stockholders, the 2010 Stock Option and Award Plan was approved.
| 33 |
The fair values of stock options are estimated using the Black-Scholes method, which takes into account variables such as estimated volatility, expected holding period, dividend yield, and the risk free interest rate. The risk free interest rate is the five year treasury rate at the date of grant. The expected life is based on the contractual life of the options at the date of grant.
The fair value of shares that vested was $2,619 and $5,189 for the years ended December 31, 2014 and 2013, respectively.
As of December 31, 2014 all compensation costs related to awards has been recognized.
| 34 |
Note 7. Income Taxes
The provision for income taxes consists of the following components:
| Year Ended December 31, | ||||||||
| 2014 | 2013 | |||||||
| Current | $ | - | $ | - | ||||
| Deferred | - | - | ||||||
| $ | - | $ | - | |||||
The current income tax benefit relates to a reduced level of uncertain tax positions identified in ASC 740 -10 Income Taxes. The components of deferred income tax assets and liabilities are as follows:
| December 31, | ||||||||
| Long-term deferred tax assets: | 2014 | 2013 | ||||||
| Stock compensation benefit | 219,778 | 219,778 | ||||||
| Net operating loss carryforward | 2,057,540 | 1,680,998 | ||||||
| Total long-term deferred tax assets | 2,277,318 | 1,900,776 | ||||||
| Valuation allowance | (2,277,318 | ) | (1,900,776 | ) | ||||
| - | - | |||||||
| Long-term deferred tax liabilities: | - | |||||||
| Intangible assets | - | - | ||||||
| Property and equipment | ||||||||
| Total long-term deferred tax liabilities | - | - | ||||||
| - | - | |||||||
| Net deferred tax assets | - | - | ||||||
The Company’s federal net operating loss (“NOL”) carryforward balance as of December 31, 2014 was $5,758,131, expiring between 2018 and 2034.
| 35 |
A schedule of the NOLs is as follows:
| Net operating | NOL | |||||||
| Tax Year | loss | Expiration | ||||||
| 1998 | $ | 184,360 | 2018 | |||||
| 1999 | 187,920 | 2019 | ||||||
| 2000 | 25,095 | 2020 | ||||||
| 2001 | 104,154 | 2021 | ||||||
| 2002 | 15,076 | 2022 | ||||||
| 2003 | 96,977 | 2023 | ||||||
| 2004 | 78,293 | 2024 | ||||||
| 2005 | 70,824 | 2025 | ||||||
| 2006 | 48,526 | 2026 | ||||||
| 2007 | 180,521 | 2027 | ||||||
| 2008 | 876,017 | 2028 | ||||||
| 2009 | 414,784 | 2029 | ||||||
| 2010 | 706,174 | 2030 | ||||||
| 2011 | 836,536 | 2031 | ||||||
| 2012 | 728,812 | 2032 | ||||||
| 2013 | 668,632 | 2033 | ||||||
| 2014 | 535,430 | 2034 | ||||||
| $ | 5,758,131 | |||||||
The Company's net deferred tax assets before valuation allowance as of December 31, 2014 was $2,277,318, most of which relates to net operating losses that expire from 2018 to 2034. The Company recorded an operating loss for the year and has a recent history of operating losses. After assessing the realization of the net deferred tax assets, we have recorded a valuation allowance of 100% of the value of the net deferred tax assets as we believe it more likely than not that the Company will not realize operating profits and taxable income so as to utilize all of the net operating losses in the future. During the year ended December 31, 2014, the Company recorded a valuation allowance of $376,790.
The Company is subject to income taxes in the U.S. federal jurisdiction and a number of state jurisdictions. The tax regulations within each jurisdiction are subject to interpretation of related tax laws and regulations and require significant judgment to apply. With few exceptions, the Company is no longer subject to U.S. federal, state and local examinations by tax authorities for the years before 2011.
The income tax provision differs from the expense that would result from applying statutory rates to income before income taxes principally because of permanent differences and the release of the valuation allowance on net deferred tax assets for which realization is certain. The effective tax rates for 2014 and 2013 were computed by applying the federal and state statutory corporate tax rates as follows:
| Year ended December 31, | ||||||||
| 2014 | 2013 | |||||||
| Statutory Federal income tax rate | 34 | % | 34 | % | ||||
| State income taxes | 0 | % | 1 | % | ||||
| Non-deductible interest and compensation | -32 | % | 0 | % | ||||
| Less valuation allowance | -3 | % | -46 | % | ||||
| Loss of expiring NOLs | 1 | % | 11 | % | ||||
| Other | 0 | % | 0 | % | ||||
| 0 | % | 0 | % | |||||
| 36 |
The Company adopted the provisions of ASC 740, previously FASB Interpretation No. 48 (FIN 48), Accounting for Uncertainty in Income Taxes, on January 1, 2007. Previously the Company has accounted for tax contingencies in accordance with Statement of Financial Accounting Standards 5, Accounting for Contingencies.
The Company recognizes the financial statement impact of a tax position only after determining that the relevant tax authority would more likely than not sustain the position following an audit. For tax positions meeting the more-likely-than–not threshold, the amount recognized in the financial statements is the largest benefit that has a greater than 50 percent likelihood of being realized upon ultimate settlement with the relevant tax authority. At the adoption date the Company applied ASC 740 to all tax positions for which the statute of limitations remained open. As a result of the implementation of ASC 740, the Company did not recognize a material increase in the liability for uncertain tax positions.
In adopting ASC 740-10, the Company elected to classify interest and penalties related to unrecognized tax benefits as income tax expenses. The Company has no accrued interest and penalties as of the years ended December 31, 2014 and 2013, because they are not material.
A reconciliation of beginning and ending amount of unrecognized tax benefits is as follows:
| Banyan Rail | ||||
| Services Inc. | ||||
| Balance at January 1, 2013 | $ | 11,400 | ||
| Additions based on tax positions related to prior years | ||||
| Reductions based on tax positions related to prior years | ||||
| Balance at December 31, 2013 | $ | 11,400 | ||
| Additions based on tax positions related to the current year | - | |||
| Reductions based on tax positions related to the current year | - | |||
| Balance at December 31, 2014 | $ | 11,400 | ||
As of December 31, 2014 and December 31, 2013, the balance in unrecognized tax benefits was $11,400, respectively. The increases or decreases in each year are the result of management’s assessment that certain positions taken meet or no longer meet the more likely than not criteria established in ASC 740-10. If these unrecognized tax benefits were ultimately recognized, they would have reduced the Company’s annual effective tax rate.
Note 8. Related Party Transactions
On March 20, 2013, the Company issued 112,822 shares of common stock to Banyan Holdings in exchange for the cancellation of the loan payable in the amount of $225,000 and the advances of $186,800.
On September 24, 2013, the Company issued 4,000 shares of common stock to Gary O. Marino for $7.50 a share or $30,000 in total, and 48,000 Shares to Banyan Holdings for $7.50 a share or $360,000 ($203,000 of cash and $157,000 in cancellation of previous advances) in total. The proceeds from the sale were used for working capital purposes.
Also in September and November 2013, the Company issued 6,000 shares of common stock to officers and directors of the Company for $7.50 a share, for an aggregate total of $45,000, as part of a private placement of common stock. The proceeds of the money received were used to fund working capital requirements.
On October 31, 2013, the Company issued 4,000 shares of common stock to Coalbrookdale Partners for a price of $7.50 a share, as part of a private placement of common stock in exchange for cash in the amount of $30,000. The proceeds of the money received were used to fund working capital requirements. Donald Denbo, a Director of the Company, is a partner in Coalbrookdale Partners.
| 37 |
On December 31, 2013, the Company entered into a demand promissory note with Banyan Holdings in the amount of $150,000 at an annual interest rate of 10%. The proceeds were used to fund working capital requirements. In connection with the demand promissory note, the Company issued 16,230 shares of common stock to Banyan Holdings on January 21, 2014 to induce Banyan Holdings to loan the Company working capital. The fair market value of the shares at the date of grant have been recorded as common stock payable in the Company’s Consolidated Statements of Stockholders’ Equity and additional interest expense on the Company’s Consolidated Statement of Operations.
On September 30, 2014 the Company completed an offering to its preferred stockholders to convert its outstanding Preferred Stock into common stock, in addition to its accrued and outstanding Preferred stock dividends into common shares. As a result of this offering the holders substantially all of the preferred stock agreed to convert and the Company agreed to issue 381,922 shares of common stock in conjunction with this conversion to related parties. As a result Banyan Rail Holdings, Coalbrookdale Partners and Paul Dennis received 353,434; 10,750 and 58,738 common shares, respectively. The shares were issued on November 18, 2014.
On December 29, 2014, the Company agreed to issue 1,807,408 shares of common stock (“Shares”) to Banyan Rail Holdings, LLC for $0.18 a share in exchange for cancellation of two (2) notes receivable plus accrued interest in the amount $325,333. The Company obtained an opinion of an independent investment banking firm that the price of $0.18 a share is fair to the Company. Gary O. Marino, the Company’s chairman, is the president of Banyan Rail Holdings, LLC and a significant owner of the Company. The shares were issued in January 2015. The Company recorded a discount of $3,922,073 to reflect the difference between the offering price and the quoted market price on the date the offering was subscribed. The discount is recorded as interest expense for the period.
Also on December 29, 2014, the Company agreed to issue 2,777,778 Shares to Marino Family Holdings, LLC for $0.18 a share or $500,000 in total. The Company obtained an opinion of an independent investment banking firm that the price of $0.18 a share is fair to the Company. Gary O. Marino, the Company’s chairman, is the manager of Marino Family Holdings, LLC. and a significant owner of the Company. The proceeds from the sale of the Shares were used for working capital purposes. The shares were issued in January 2015. The Company recorded a discount of $6,027,778 to reflect the difference between the offering price and the quoted market price on the date the offering was subscribed. The discount is recorded as compensation expense for the period.
On December29, 2014, the Company agreed to issue 138,889 shares of common stock for $0.18 a share to Coalbrookdale Partners as part of a private placement of common stock in exchange for the cancellation of advances made to the Company in the amount of $25,000. The Company obtained an opinion of an independent investment banking firm that the price of $0.18 a share is fair to the Company. The proceeds of the money received were used to fund working capital requirements. Donald Denbo, a Director of the Company, is a partner in Coalbrookdale Partners. The Company recorded a discount of $301,389 to reflect the difference between the offering price and the quoted market price on the date the offering was subscribed. The discount is recorded as compensation expense for the period.
Also on December 29, 2014, the Company agreed to issue 138,889 Shares to Jon Ryan for $0.18 a share, or $25,000 in total. The Company obtained an opinion of an independent investment banking firm that the price of $0.18 a share is fair to the Company. Mr. Ryan is the Company’s Chief Executive Officer, President and Chief Financial Officer of the Company. The shares were issued in January 2015. The Company recorded a discount of $301,389 to reflect the difference between the offering price and the quoted market price on the date the offering was subscribed. The discount is recorded as compensation expense for the period.
The Company’s board of directors and officers beneficially own 1,113,411 shares of the Company’s common stock as of December 31, 2014 (71.6% of the outstanding common stock).
Note 9. Subsidiary Bankruptcy and Settlement Agreement
On January 11, 2013, The Wood Energy filed a voluntary petition for reorganization relief under the provisions of Chapter 11 of Title 11 of the United States Bankruptcy Code in the United States Bankruptcy Court Southern District of Florida, which was voluntarily converted into a Chapter 7 Bankruptcy on February 5, 2013.
The assets of Wood Energy were liquidated by the Trustee of the Bankruptcy Court. The proceeds for the sale were used to satisfy a portion of the secured claims, with the remainder if any, allocated to the unsecured claims.
As a result of Banyan’s guarantee of Wood Energy’s outstanding secured debt, at the time of its bankruptcy filing, to Fifth Third Bank (“FTB” or “Fifth Third”), FTB filed an action against Banyan in the Circuit Court of the Fifteenth Judicial Circuit in Palm Beach County, Florida. The action was subsequently settled on September 26, 2013 when Banyan paid $200,000 to FTB which fully satisfied Banyan’s obligation and provided a full release for Banyan by FTB.
| 38 |
Note 10. Subsequent Events
In January 2015, the Company issued 10,921 shares of common stock in lieu of $51,875 of preferred stock dividends accrued at year end. The remaining accrual will be paid when the Company has sufficient cash flows as determined by the board of directors.
In February 2015, the Company effectuated an amendment to its certificate of incorporation to increase the authorized shares of common stock from 7.5 million to 50.0 million by amending Article Third of our certificate of incorporation.
As of March 10, 2015, the Company sold 1,038,889 shares of common stock as part of a private placement of common stock in the amount of $187,000. The proceeds of the money received were used to fund working capital requirements. The shares will be issued in March 2015.
| 39 |
Exhibit 3.8
CERTIFICATE OF AMENDMENT
OF
CERTIFICATE OF INCORPORATION
OF
BANYAN RAIL SERVICES INC.
Banyan Rail Services Inc., a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (the “Corporation”),
DOES HEREBY CERTIFY:
FIRST: That the Board of Directors of the Corporation (the “Board”), in a meeting of the Board on December 9, 2014, duly adopted a resolution setting forth a proposed amendment of the Restated Certificate of Incorporation of the Corporation, as amended (the “Certificate of Incorporation”), declaring said amendment to be advisable and stating that said amendment be presented to the stockholders of the Corporation for their consideration. The resolution setting forth the proposed amendment is as follows:
RESOLVED, that the Board hereby proposes that Article Third of the Certificate of Incorporation, as amended, of the Corporation (the “Certificate of Incorporation”), be amended in its entirety to effectuate an increase of the authorized capital stock of the Corporation to 51.0 million shares consisting of 50.0 million shares of common stock and 1.0 million shares of preferred stock:
ARTICLE THIRD: (a) Authorized Capital Stock. The aggregate number of shares of all classes of stock that the Corporation is authorized to issue is 51,000,000 shares, consisting of:
(i) 50,000,000 shares of common stock, par value $0.01 per share (collectively, the “Common Stock”); and
(ii) 1,000,000 shares of serial preferred stock, par value $0.01 per share (collectively, the “Preferred Stock”).
(b) Common Stock.
(i) Powers, Preferences and Rights. Except as may otherwise be provided by this Certificate of Incorporation, as may be amended from time to time by resolutions of the Board of Directors designating a class or series of Preferred Stock pursuant to Section 3(c) hereof (this “Certificate of Incorporation”), or by the Delaware General Corporation Law, the powers, preferences and rights of the Common Stock, and the qualifications, limitations or restrictions thereof, shall be in all respects identical.
(ii) Voting Rights. Except as may otherwise be provided by this Certificate of Incorporation or by the Delaware General Corporation Law, (A) all rights to vote and all voting power shall be vested exclusively in the holders of the Common Stock and (B) each holder of Common Stock shall be entitled to one vote for each share held of record on the applicable record date on all matters presented for a vote of the stockholders of the Corporation, including, without limitation, the election of directors.
(iii) Dividends. Except as may otherwise be provided by this Certificate of Incorporation or by the Delaware General Corporation Law, if, as and when dividends on the Common Stock are declared payable from time to time by the Board of Directors out of funds legally available therefor as provided in this Section 3(b)(iii), whether payable in cash, property, stock or other securities, the holders of Common Stock shall be entitled to share equally, on a per share basis, in such dividends.
(iv) Liquidating Distributions. Upon any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, or upon any sale or conveyance of all or substantially all of the assets of the Corporation, after payment or provision for payment of all the liabilities of the Corporation and the expenses of liquidation, and after the holders of the Preferred Stock shall have been paid in full the amounts, if any, to which they are entitled or a sum sufficient for such payment in full shall have been set aside, the remaining assets of the Corporation available for distribution shall be distributed ratably to the holders of the Common Stock in accordance with their respective rights and interests. For the purpose of this Section 3(b)(iv), a merger, consolidation, sale or conveyance shall not be deemed to be a liquidation or winding up of the Corporation unless the transaction provides for the cessation of the business of the Corporation.
(c) Preferred Stock.
(i) Designations by Board of Directors. The Preferred Stock may be issued from time to time in one or more classes or series with such voting rights, full or limited, or without voting rights, and with such designations, preferences and relative, participating, optional or special rights, and qualifications, limitations or restrictions as are stated herein and as shall be stated and expressed in the resolution or resolutions providing for the issue of such stock adopted by the Board of Directors as hereinafter prescribed.
(ii) Terms of the Preferred Stock. Subject to the rights of the holders of the Common Stock, authority is hereby expressly granted to and vested in the Board of Directors or any designated committee thereof to authorize the issuance of the Preferred Stock from time to time in one or more classes or series, to determine and take necessary proceedings to fully effectuate the issuance and redemption of any such Preferred Stock and, with respect to each class or series of Preferred Stock, to fix and state from time to time, by resolution or resolutions providing for the issuance thereof, the following:
| 2 |
(A) the number of shares to constitute the class or series and the designations thereof;
(B) whether the class or series is to have voting rights, full or limited, or to be without voting rights;
(C) the preferences and relative, participating, optional or special rights, if any, and qualifications, limitations or restrictions thereof, if any, of the class or series;
(D) whether the shares of the class or series will be redeemable and, if redeemable, the redemption price or prices and the time or times at which, and the terms and conditions upon which, such shares will be redeemable and the manner of redemption;
(E) whether the shares of the class or series will be subject to the operation of retirement or sinking funds to be applied to the purchase or redemption of such shares for retirement and, if such retirement or sinking funds are to be established, the annual amount thereof and the terms and conditions relative to the operation thereof;
(F) the dividend rate, whether dividends are payable in cash, stock or otherwise, the conditions upon which and the times when such dividends are payable, the preference or relation to the payment of dividends on any other class or series of stock, whether or not such dividends will be cumulative or noncumulative and, if cumulative, the date or dates from which such dividends will accumulate;
(G) the preferences, if any, and the amounts thereof that the holders of the class or series will be entitled to receive upon the voluntary or involuntary dissolution, liquidation or winding up of, or upon any distribution of the assets of, the Corporation;
(H) whether the shares of the class or series will be convertible into, or exchangeable for, the shares of any other class or classes, or of any other series of the same or any other class or classes, of stock of the Corporation and the conversion price or prices, or ratio or ratios, or rate or rates, at which such conversion or exchange may be made, with such adjustments, if any, as shall be expressed or provided for in such resolution or resolutions; and
(I) such other special rights and protective provisions with respect to the class or series as the Board of Directors or any designated committee thereof may deem advisable.
| 3 |
The shares of each class or series of Preferred Stock may vary from the shares of any other class or series thereof in any or all of the foregoing respects. The Board of Directors or any designated committee thereof may from time to time increase the number of shares of Preferred Stock designated for any existing class or series by a resolution adding to such class or series authorized but unissued shares of Preferred Stock not designated for any other class or series thereof. The Board of Directors or any designated committee thereof may from time to time decrease the number of shares of Preferred Stock designated for any existing class or series by a resolution subtracting from such class or series any unissued shares of Preferred Stock designated for such class or series, and the shares so subtracted shall become authorized, unissued and undesignated shares of Preferred Stock.
(d) Reverse Stock Split. Each outstanding share of Common Stock as of April 2, 2010 (the “Split Date”) shall be exchanged for 1/10 of a share of Common Stock. Each certificate that prior to the Split Date represented shares of Common Stock shall then represent the number of shares of Common Stock into which such shares are split hereby; provided, however, that each person holding of record a stock certificate or certificates that prior to the Split Date represented shares of Common Stock shall receive, upon surrender of each such certificate or certificates, a new certificate or certificates representing the number of shares of Common Stock to which such person is entitled. No new certificates representing fractional shares will be issued. Instead, each share of stock that would otherwise be converted into fractional shares as a result of the stock split will be rounded to the nearest whole share.
(e) Reverse Stock Split. Each outstanding share of Common Stock as of September 12, 2013 (the “Split Date”) shall be exchanged for 1/5 of a share of Common Stock. Each certificate that prior to the Split Date represented share of Common Stock shall then represent the number of shares of Common Stock into which such shares are split hereby; provided, however, that each person holding of record a stock certificate or certificates that prior to the Split Date represented shares of Common Stock shall receive, upon surrender of each such certificate or certificates, a new certificate or certificates representing the number of shares of Common Stock to which such person is entitled. No new certificates representing fractional shares will be issued. Instead, each share of stock that would otherwise be converted into fractional shares as a result of the stock split will be rounded to the nearest whole share.”
SECOND: That, thereafter, in accordance with Section 228 of the General Corporation Law of the State of Delaware, said amendment of the Corporation’s Certificate of Incorporation was duly adopted by written consent of the holders of a majority of the outstanding stock of the Corporation entitled to vote on the matter;
THIRD: That said amendment was duly adopted in accordance with the applicable provisions of Section 242 of the General Corporation Law of the State of Delaware; and
FOURTH: That the capital of the Corporation shall not be reduced by reason of said amendment.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be signed by its duly elected officer on the 4th day of February 2015.
| 4 |
| Banyan Rail Services Inc. | |
| /s/ Christopher J. Hubbert | |
| By: Christopher J. Hubbert | |
| Its: Secretary |
| 5 |
Exhibit 31.1
Rule 13a-14(a)/15d-14(a) Certification of
Principal Executive Officer Pursuant to Section 302
of the Sarbanes-Oxley Act of 2002
I, Jon Ryan, certify that:
| 1. | I have reviewed this annual report on Form 10-K of Banyan Rail Services Inc.; |
| 2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; |
| 3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; |
| 4. | The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
| 5. | The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions): |
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| Date: March 25, 2015 | ||
| /s/Jon Ryan | ||
| Jon Ryan | ||
| President and Chief Executive Officer (Principal Executive Officer) | ||
Exhibit 31.2
Rule 13a-14(a)/15d-14(a) Certification of
Principal Financial Officer Pursuant to Section 302
of the Sarbanes-Oxley Act of 2002
I, Jon Ryan, certify that:
1. I have reviewed this annual report on Form 10-K of Banyan Rail Services Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and
5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.
| Date: March 25, 2015 | ||
| /s/Jon Ryan | ||
| Jon Ryan | ||
| Chief Financial Officer (Principal Financial Officer) | ||
Exhibit 32.1
Certification Pursuant to 18. U.S.C. Section 1350,
As Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002
In connection with the annual report of Banyan Rail Services Inc. (the “Company”) on Form 10-K for the year ended December 31, 2014 (the “Report”) filed with the Securities and Exchange Commission on the date hereof, I, Jon Ryan, President, Chief Executive and Financial Officer of the Company, certify, pursuant to 18 U.S.C. § 1350, as adopted pursuant to § 906 of the Sarbanes-Oxley Act of 2002, that:
(1) The Report fully complies with the requirements of § 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| /s/Jon Ryan | ||
| Jon Ryan | ||
| President, Chief Executive and financial Officer | ||
March 25, 2015